On January 1, 2011, immigrants whose work authorization was denied filed a lawsuit in the U.S. District Court for the Central District of California against the U.S. Citizenship and Immigration Services ("USCIS"). The plaintiffs, represented by private counsel, claimed that USCIS had unlawfully found plaintiffs ineligible for employment authorization based on the erroneous determination that their adjustment applications were no longer pending at the time employment authorization was sought. Further, plaintiffs alleged that the immigration court was not providing them with evidence that demonstrated that they had renewed their adjustment of status applications in removal proceedings. Plaintiffs sought class certification and injunctive, declaratory, and mandamus relief. In an amended complaint, plaintiffs added the Executive Office for Immigration Review ("EOIR") as a defendant.

Each named plaintiff was a beneficiary of an I-140 immigrant visa petition based on employment (or status as a spouse) and had applied for adjustment of status to lawful permanent resident (I-485). USCIS denied the adjustment applications, and each plaintiff was consequently placed in removal proceedings. In those removal proceedings, each plaintiff renewed his adjustment application and filed an application for employment authorization (I-765) pursuant to 8 U.S.C. § 274a.12(c)(9). USCIS denied their employment authorization applications, finding that plaintiffs' adjustment applications were no longer pending despite the renewal of said applications in the removal proceedings.

Plaintiffs sought (1) to compel USCIS to interpret Section 274a.12(c)(9) to mean that adjustment of status applications filed during removal proceedings count as pending before the immigration grant; and (2) to compel EOIR to issue some type of confirmatory receipts to individuals who have renewed adjustment applications, so that individuals could prove they have renewed their adjustment applications when seeking employment authorization.

On August 9, 2012, the parties settled. The settlement stipulated that USCIS recognizes that adjustment of status application properly renewed with the immigration court by an alien in removal proceedings constituted a "pending" application for purposes of renewing employment authorization. The defendants denied all liability and the individual named plaintiffs' claims were dismissed without prejudice.

Even after settlement, court activity continued. On April 26, 2013, plaintiffs filed a motion to enforce the settlement agreement. On May 20, 2013, they withdrew the motion.

The settlement set out that if EOIR and USCIS met certain key terms, the parties would file a joint stipulation to voluntarily dismiss the action with prejudice; this has not happened. The settlement was set to last until either that voluntary dismissal takes place, or two years, whichever is later. Since there has been no voluntary dismissal, this case remains open, though currently inactive. (There has been no docket activity since 2013.)

Jennifer Bronson - 10/06/2013
Sean Whetstone - 06/21/2018


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