CA9 on EB-3 Visa Recapture: Li v. Kerry

"Plaintiffs allege that Defendants misallocated immigrant visas to eligible applicants in the employment-based third preference category (EB-3) during the 2008 and 2009 fiscal years.  Plaintiffs request that visa numbers be made available to them and other members of their class so that they can obtain visas or adjustment of status before the end of the fiscal year.  We hold that the district court properly dismissed the complaint because there is no live case or controversy about the establishment of visa cut-off dates, and the allocation of visa numbers, in the 2008 and 2009 fiscal years.  We also hold that the district court did not err in dismissing Plaintiffs’ claims for prospective relief because they did not allege that Defendants failed to take discrete actions they were legally required to take.  Accordingly, we affirm the decision of the district court."

But see Reinhardt, concurring: "Plaintiffs have identified a significant problem with this country’s system of issuing immigrant visas.  In 2008 and 2009, according to Plaintiffs, our nation’s immigration authorities wrongfully distributed to citizens of other nations over 40% of the available employment-based, third preference (“EB-3”) immigrant visas that, under the applicable statute, should have been made available to individuals from mainland China.  These visas—numbering over 2,300—would have permitted applicants from China to live and work in this country as legal permanent residents and to start on a path to United States citizenship at the time intended by Congress.  Instead, the government erroneously gave these visas to individuals from other countries, many of whom had been waiting far less time for the same type of visa than their Chinese counterparts. ... what is clear is that during 2008 and 2009 (and likely beyond), as a result of either errors or oversights on the part of the responsible agencies, the immigrant visa system did not function in a manner consistent with Congress’s intent in creating it.  Although we dismiss Plaintiffs’ complaint, our decision should not be read as condoning that unfortunate result."

- Li v. Kerry, Mar. 20, 2013.