Soc'y of Word v. U.S. Citizenship & Immigration Servs.

683 F.Supp.3d 799

SOCIETY OF the DIVINE WORD, Chicago Province;National Spiritual Assembly of the Baha'is in the United States;Illinois Great Rivers Conference of the United Methodist Church;Pontifical Institute for Foreign Missions; Brown Missionary Baptist Church;India Heritage Foundation, NJ/NY Inc.; Baptist Mid-Missions;General Secretariat of the Franciscan Missions, Inc.; the Roman Catholic Diocese of Des Moines;First Baptist Church of Kalamazoo; Grace-Trinity United Church of Christ;Birmingham Chinese Christian Church; Diocese of Peoria, Illinois;Missionary Sisters Servants of the Holy Spirit; Algood Baptist Church,d/b/a Church on a Hill; Evangelical Lutheran Church of America (ELCA),Indiana-Kentucky Synod; & Evangelical Lutheran Church of America (ELCA), New Jersey Synod, Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (USCIS);Alejandro Mayorkas, Secretary of the Department of Homeland Security;and Donna P. Campagnolo, Director, USCIS California Service Center (CSC), Defendants.

Case No. 21 CV 3650

United States District Court, N.D. Illinois, Eastern Division

Signed July 20, 2023

Scott D. Pollock, Christina Joan Murdoch, Scott D. Pollock & Associates, P.C., Chicago, IL, Stephen L. Tyma, Chicago, IL, for Plaintiffs Society of the Divine Word Chicago Province, National Spiritual Assembly of the Baha'is of the United States, Illinois Great Rivers Conference of the United Methodist Church, Pontifical Institute for Foreign Missions, Baptist Mid-Missions, Grace-Trinity United Church of Christ, General Secretariat of the Franciscan Missions, Inc., Brown Missionary Baptist Church, First Baptist Church of Kalamazoo, India Heritage Foundation, NJ/NY Inc., The Roman Catholic Diocese of Des Moines, Birmingham Chinese Christian Church, Diocese of Peoria, Illinois, Missionary Sisters Servants of the Holy Spirit.

Christina Joan Murdoch, Scott D. Pollock, Scott D. Pollock & Associates, P.C., Chicago, IL, for Plaintiffs Evangelical Lutheran Church of America, (ELCA), New Jersey Synod, Algood Baptist Church, Evangelical Lutheran Church of America, Indiana-Kentucky Synod.

AUSA, Craig Arthur Oswald, Elizabeth Inez Treacy, United States Attorney"s Office, Chicago, IL, Aaron Goldsmith, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION & ORDER

Robert W. Gettleman, United States District Judge

Plaintiffs are tax-exempt religious institutions and bring their fourth amended complaint against defendants United States Citizenship and Immigration Services ("USCIS"); Alejandro Mayorkas, Secretary of the Department of Homeland Security; and Donna P. Campagnolo, Director of the USCIS California Service Center ("CSC") (collectively, "defendants"). The complaint alleges that defendants' regulations, policies, and practices violate the U.S. Constitution and various federal statutes. Count 1 alleges violations of the Free Exercise Clause of the First Amendment; Count 2 alleges violations of the Establishment Clause of the First Amendment; Count 3 alleges violations of the Religious Freedom Restoration Act ("RFRA"), 28 U.S.C. § 2201; Count 4 alleges violations of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255; and Count 6 alleges violations of the Due Process and Equal Protection Clauses.¹ On April 17, 2023, plaintiffs moved for summary judgment on all counts (Doc. 62), and defendants cross-moved for summary judgment on May 18, 2023 (Doc. 65). For the reasons discussed below, the court denies plaintiffs' motion (Doc. 62), and grants defendants' motion (Doc. 65).

BACKGROUND

As tax-exempt religious institutions, plaintiffs claim that they exercise their religious beliefs and advance them in practice by employing foreign-born ministers and international religious workers.² Ministers and other religious workers can seek classification in the employment-based immigrant preference category for "special immigrants." 8 U.S.C. § 1154(a)(1)(G)(i). What plaintiffs term the "special immigrant religious worker" category is known as "EB-4." 8 U.S.C. § 1153(b)(4); 8 U.S.C. § 1101(a)(27)(C). The EB-4 category includes other types of workers, such as certain juveniles, U.S. government employees who are abroad, members of the U.S. armed forces, and broadcasters. 8 U.S.C. § 1101(a)(27). Other employment-based immigrant preference categories are priority workers ("EB-1"), advanced degree and exceptional ability workers ("EB-2"), professional and skilled workers ("EB-3"), and individuals involved in job creation ("EB-5"). 8 U.S.C. §§ 1153(b)(1),(2),(3), and (5).

The INA allows up to 5,000 visas per fiscal year for EB-4 workers, and the process of employing them requires a series of steps by employers (such as plaintiffs) and their non-citizen employees. Employers first seek EB-4 classification for their non-citizen employees by filing a Form I-360 petition with the Secretary of Homeland Security. 8 C.F.R. § 204.5(a). After USCIS approves the Form I-360 petition, the non-citizen employee must file a Form I-485 application for adjustment of status to "lawful permanent resident," otherwise known as "green card holder." 8 C.F.R. § 245.2.

USCIS regulates employment-based immigrant preference categories and adjustment of status based on its discretion under § 1255(a), which provides that:

"The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." [Emphasis added.]

For EB-4 workers, USCIS has interpreted the INA to determine that a visa is "immediately available" only after USCIS has approved the corresponding Form I-360 petition. 8 C.F.R. § 245.2(a)(2)(i)(B).

In the instant case, plaintiffs are employers who filed Form I-360 petitions on behalf of specific non-citizen employees who were already in the United States on non-immigrant ("R-1") visas. R-1 visas allow non-citizen employees to stay in the country for up to five years, and potentially even longer if they successfully "adjust status" prior to their R-1 visa expiration. If an R-1 visa holder does not adjust their status before its expiration, the individual becomes unlawfully present in the United States and ineligible to adjust status after 180 days.³ 8 U.S.C. §§ 1255(c), (k). The non-citizen employees are not parties to the instant case.

Employment-based immigrants in other preference categories must complete different steps to adjust their status. For example, employers of non-citizen workers in the EB-1, EB-2, and EB-3 preference categories file Form I-140 petitions instead of Form I-360 petitions. 8 C.F.R. § 204.5(a). Some of these employers must test the U.S. labor market by seeking a labor certification from the United States Department of Labor. 8 U.S.C. § 1182(a)(5)(A)(i). However, just like EB-4 employees, employees in the other preference categories must file Form I-485 applications for status adjustment. 8 C.F.R. § 245.2(a)(3). The difference is that other categories of employment-based workers can file their Form I-485 applications concurrently with their Form I-140 petitions, whereas EB-4 employees can file their Form I-485 applications only after the USCIS approves their employers' Form I-360 petitions. 8 C.F.R. § 245.2(a)(2)(i)(B).

The difference in concurrent filing prohibitions between employment-based preference categories is central to this case. In 1991, the former Immigration and Naturalization Service ("INS") eliminated concurrent filing under 8 U.S.C. § 1153(b) for all categories. 56 Fed. Reg. 49,839 (Oct. 2, 1991). In 2002, however, INS authorized concurrent filing for EB-1, EB-2, and EB-3 petitioners. 67 Fed. Reg. 49,561 (July 31, 2002). In 2008, the Department of Homeland Security ("DHS") considered, but declined, to extend concurrent filing to EB-4 petitioners. 73 Fed. Reg. 72,276 (Nov. 26, 2008).

In denying concurrent filing for EB-4 petitioners, the agency reasoned that non-concurrent filing improves its ability "to detect and deter fraud and other abuses in the religious worker program," citing a study by the Government Accountability Office that identified a high incidence of fraud in that program. 73 Fed. Reg. 72,276, 72,277, 72,284 (Nov. 26, 2008). DHS concluded that non-concurrent filing is "a valuable fraud deterrent," and aligned with its statutory mandate to eliminate or reduce fraud among special immigrant religious workers and protect the integrity of the program. 72 Fed. Reg. 20,443, 20,450 (Apr. 25, 2007); 73 Fed. Reg. 72,284 (Nov. 26, 2008). In doing so, the agency recognized that individuals sponsored by religious organizations may obtain admission to the United States using other means. 73 Fed. Reg. 72,283 (Nov. 26, 2008).

In the instant case, USCIS has approved all plaintiffs' Form I-360 petitions, but plaintiffs state that they continue to be harmed by USCIS's regulation prohibiting concurrent filing for EB-4 petitioners, 8 C.F.R. § 245.2(a)(2)(i)(B), because they anticipate filing Form I-360 petitions in the future. They complain that the inability to concurrently file Form I-485 applications with Form I-360 petitions results in processing delays that harm plaintiffs because their employees are time-limited by R-1 status. Consequently, plaintiffs anticipate experiencing uncertainty and disruptions in religious services, in addition to diverted resources, which they expend to follow up on pending petitions to avoid lapses in employment authorization.⁴ According to plaintiffs, they predict that they will be forced to choose between losing their employees' religious services or facing sanctions. Ultimately, plaintiffs allege that the...