Pacharne v. Dep't of Homeland Sec.

565 F.Supp.3d 785

Vijay PACHARNE, Renuka Parcharne, Rohini Nathan, Swami Nathan, and Karuna Nathan, Plaintiffs

v.DEPARTMENT OF HOMELAND SECURITY ; Alejandro Mayorkas, in his Official Capacity, Secretary of Homeland Security; Tracy Renaud, in her Official Capacity, Acting Director, United States Citizenship and Immigration Services ; David Roark, in his Official Capacity as Director of the USCIS Texas Service Center; and Gerald Heinaur, in his Official Capacity as Director of the USCIS Nebraska Service Center, Defendants

CIVIL ACTION NO. 1:21-CV-115-SA-DAS

United States District Court, N.D. Mississippi, Aberdeen Division.

Signed September 30, 2021

Barry J. Walker, I, Walker Immigration Law Firm, George E. Dent, Greer Pipkin Russell Dent & Leathers, Tupelo, MS, for Plaintiffs.

Joseph Luke Benedict, Stuart Davis, Samuel David Wright, U.S. Attorney's Office, Oxford, MS, for Defendants.

ORDER AND MEMORANDUM OPINION

Sharion Aycock, UNITED STATES DISTRICT JUDGE

The Plaintiffs initiated this action by filing their Complaint [1] on July 15, 2021.¹ In their Complaint [1], the Plaintiffs raise claims for violations of the Administrative Procedures Act, request a writ of mandamus, and seek declaratory judgment relief and injunctive relief. On August 12, 2021, the Plaintiffs filed a Motion [6], requesting that the Court hold an emergency hearing regarding the relief sought in their Complaint [1]. The Court initially held a hearing on August 31, 2021, and then held a supplemental hearing on September 7, 2021. Having reviewed the Motion [6], evidence, argument of counsel, and relevant authorities, the Court is now prepared to rule.

Factual Background

There are five plaintiffs in this case, each of whom were born in India. The chart below provides a brief explanation of each Plaintiffs’ immigration status:

       Name            Location                Status                        Date of First
                                                                          Immigration Filing
  Vijay Pacharne      Starkville, MS     H-1B Specialty Occupation        July 31, 2013
                                         Worker visa
  Reunka Pacharne     Starkville, MS     H-4 Dependent (wife of Vijay     July 31, 20132
                                         Pacharne)
  Rohini Nathan       Kingsport, TN      H-1B Specialty Occupation        July 26, 2012
                                         Worker visa
  Swami Nathan        Kingsport, TN      H-4 Dependent (husband of        July 26, 2012
                                         Rohini Nathan)
  Karuna Nathan       Kingsport, TN      H-4 Dependent (minor             July 26, 2012
                                         daughter of Rohini Nathan)

[Editor's Note: The preceding image contains the reference for footnote² ].

Vijay Pacharne: Vijay Pacharne resides in Starkville, Oktibbeha County, Mississippi. He is a secondary school mathematics teacher in the Starkville Oktibbeha Consolidated School District. The school district has supported his permanent residence case, first filing an immigration case for Mr. Pacharne on July 31, 2013. Mr. Pacharne's current immigration status is that of an H-1B Specialty Occupation Worker. Since that time, Mr. Pacharne has been waiting to obtain permanent residence. Mr. Pacharne filed an Application for Adjustment of Status to Lawful Permanent Residence on October 22, 2020 with the USCIS Texas Service Center.

Reunka Pacharne: Reunka Pacharne is Vijay Pacharne's wife and also resides in Starkville, Oktibbeha County, Mississippi. Her marriage to Mr. Pacharne makes her eligible to immigrate to the United States as a permanent resident. Her current immigration status is that of an H-4 dependent. Renuka Pacharne filed an Application for Adjustment of Status to Lawful Permanent Residence on October 22, 2020 with the USCIS Texas Service Center.

Rohini Nathan: Rohini Nathan resides in Kingsport, Sullivan County, Tennessee. She currently has an H-1B Specialty Occupation Worker visa. Her employer first filed her immigration case on July 26, 2012. She filed an Application for Adjustment of Status to Lawful Permanent Residence on November 20, 2020 with the Nebraska Service Center.

Swami Nathan: Swami Nathan is Rohini Nathan's husband. He resides in Kingsport, Sullivan County, Tennessee. His marriage to Dr. Nathan makes him eligible to immigrate to the United States as a permanent resident. His current immigration status is that of an H-4 dependent. He filed an Application for Adjustment of Status to Lawful Permanent Residence on November 20, 2020 with the Nebraska Service Center.

Karuna Nathan: Karuna Nathan is Rohini Nathan's minor daughter. As such, she also resides in Kingsport, Sullivan County, Tennessee. As Dr. Nathan's dependent child, she is eligible to immigrate to the United States as a permanent resident. Her current immigration status is that of an H-4 dependent. She filed an Application for Adjustment of Status to Lawful Permanent Residence on November 20, 2020 with the Nebraska Service Center.

Explanation of Visa Allocation³

The most current Filing Charts list January 1, 2014 as the priority date for applicants from India. As a result, any cases wherein the initial immigration case was filed before January of 2014 are to take priority. Therefore, all the Plaintiffs in this case have priority as they filed their initial immigration cases in 2012 and 2013 respectively.

The Immigration and Nationality Act establishes that there are 140,000 total available employment-based visas every October, the beginning of each fiscal year. It should additionally be noted that statutorily, only seven percent of the total number of visas issued may be for residents of any one country. As a result, immigrants from more populated countries—such as the Plaintiffs who are from India—seeking to immigrate to the United States tend to experience a "backlog" as they are bound by the initial limits of the total number of visas that may be allocated plus the additional seven percent limitation.

Any of the visas that are not issued from the family-based category from the previous fiscal year roll over to the employment-based category to allow for more than 140,000 visas to be issued in that category. In other words, if there are unused family-based visas issued in the previous year, the unused number is added to the 140,000 employment-based visa allocation the next fiscal year. According to the Defendants, these roll-over visas are subject to the seven percent limit unless there are more available visas in a particular category than there are applications. See [24], Ex. 1 at p. 2. However, according to a declaration the Defendants provided, if there are any remaining visas at the end of the year in the employment-based category, those remaining visas will then roll over to the family-based category for the next year. See [24], Ex. 1 at p. 3 ("At the end of the fiscal year, the unused EB visa numbers, if any, are required by statute to roll over and are included in the calculation of the subsequent fiscal year's family-sponsored limit.").⁴

As noted above, the Plaintiffs seek employment-based visas. Although any excess family-based visas would theoretically roll over to the employment-based category, typically all family-based visas are used, leaving no remaining family-based visas to roll over to the employment-based category. However, the Plaintiffs contend that last fiscal year (October 2019 – September 2020) all family-based visas were not allocated due to the unique circumstances created by the COVID-19 pandemic. Consequently, approximately 122,000 visas spilled over from the family-based category into the employment-based category. Thus, the Plaintiffs contend that the current fiscal year (which expires on September 30, 2021) is their best opportunity to obtain employment-based visas.

However, they allege that, because of USCIS's inefficiencies, there is no way that the agency will issue all employment-based visas that are available this fiscal year. In fact, as of now, it is estimated that over 82,000 employment-based visas will go unused. See [27] at p. 3 ("According to USCIS’ own estimation, they will fall short and will be unable to process in excess of 82,000 otherwise available employment-based visas from Fiscal Year 2021."). Furthermore, the Plaintiffs contend that the unused employment-based visas for this fiscal year will be wasted, and it will likely be several more years before their applications are processed.

Injunctive Relief Standard

In order to obtain a preliminary injunction, the Plaintiffs must show: "(1) a substantial likelihood of success on the merits, (2) a substantial threat that failure to grant the injunction will result in irreparable injury, (3) the threatened injury outweighs any damage that the injunction may cause the opposing party, and (4) the injunction will not disserve the public interest." K & J Enterprises, LLC v. City of Oxford, Mississippi , 2018 WL 4937062, at *3 (N.D. Miss. Oct. 11, 2018) (citing Neal v. Fed. Bureau of Prisons , 76 Fed. Appx. 543, 545 (5th Cir. 2003) (internal citation omitted)). The Plaintiffs must prove all four elements as the "failure to prove any one of them will result in a denial of the motion." Id. (quoting Neal , 76 Fed. Appx. at 545 (internal citation omitted)). Factors three and four "merge when the Government is the opposing party." Nken v. Holder , 556 U.S. 418, 435, 129 S. Ct. 1749, 173 L.Ed.2d 550 (2009). Further, injunctive relief is an extraordinary remedy not often granted. See Martinez v. Mathapathi , 2018 WL 3763848, at *1 (N.D. Tex. July 17, 2018) (internal citation omitted) ("Injunctive relief is an extraordinary remedy that requires the applicant to unequivocally show the need for its issuance."); see also White v. Carlucci , 862 F.2d 1209, 1211 (5th Cir. 1989) (internal citation and quotation marks omitted) ("A preliminary injunction is an extraordinary and drastic remedy, not to be granted...