The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHALINI KOLLURI, et al., §
§
Plaintiffs, §
§
v. § Civil Action No. 3:20-CV-02897-N
§
UNITED STATES CITIZENSHIP AND §
IMMIGRATION SERVICE, §
§
Defendant. §
MEMORANDUM OPINION AND ORDER
This Order addresses Plaintiffs’ motions for preliminary injunction [13], [17], and
Plaintiffs’ motion for expedited discovery [14]. For the reasons set forth below, the Court
denies Plaintiffs’ motion for a preliminary injunction and motion to expedite discovery.
I. ORIGINS OF THE DISPUTE
Plaintiffs are H-4 applicants and visa holders who have sued the United States
Citizenship and Immigration Service (“USCIS”) for unlawful delay in adjudicating
applications necessary to work in the United States. Plaintiffs’ complaint raises two claims
under the Administrative Procedure Act (“APA”). The first claim challenges USCIS’s
prohibition on automatic extension of H-4 employment authorization documents
(“EADs”). The second claim is an unreasonable delay claim under the APA based on two
theories. See Pls.’ Mot for Expedited Disc. 3 [15-1]. The first theory alleges that the
USCIS took actions in bad faith to slow down adjudication of EADs for H-4 visa holders.
Specifically, USCIS currently adjudicates applications sequentially rather than
concurrently and implemented a biometrics requirement, which requires H-4 applicants to
appear at the nearest application support center and provide biometric information.
Plaintiffs argue that these two actions are bad faith efforts to create delays that are per se
unreasonable. The second theory challenges the adjudicatory delays under the factors set
forth in Telecomm. Research & Action Ctr. v. F.C.C. (TRAC), 750 F.2d 70, 80 (D.C. Cir.
1984). Plaintiffs seek a mandatory injunction ordering USCIS to “adjudicate plaintiffs’
pending H-4 extension and work authorization renewals within 7 days of the Court’s
order.” Pls.’ Mots. for Prelim. Inj. [13], [17].
II. H-4 VISAS REGULATORY BACKGROUND
The Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq., regulates the
admission of foreign nationals into the United States, including the temporary admission
of nonimmigrants for specific purposes. Domestic employers who seek to hire foreign
nationals for specialty occupations must apply and secure for these potential employees an
H1-B visa. See 8 U.S.C. § 1101(a)(15)(H)(i)(B). An H1-B visa holder’s spouse may
receive derivative immigration status under an H-4 visa. The validity period of an H-4 visa
is dependent upon the length of the attendant H-1B visa. See 8 C.F.R. § 214.2(h)(9)(iv).
For H-4 visa holders to apply for or extend their visa status, they must file an Application
to Extend/Change Nonimmigrant Status (Form I-539) to USCIS no earlier than six months
before the holder’s visa is set to expire.
Without a separate work authorization, H-4 visa holders may live, but not work, in
the United States. In 2015, USCIS modified existing regulations to allow H-4 visa holders
to apply for work authorization if their spouse, the H-1B visa holder, has shown an intent
to stay in the United States and to become a legal permanent resident. See Employment
Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284, 10,285 (proposed
Feb. 25, 2015) (to be codified at 8 C.F.R. §§ 214, 274a); see also 8 C.F.R. §§
214.2(h)(9)(iv), 274a.12(c)(26). To request employment authorization, an eligible H-4
visa holder must file an Application for Employment Authorization (Form I-765)
complying with 8 C.F.R. § 247a.13 and provide documentary evidence that establishes,
among other criteria, the H-4 applicant’s eligibility, the applicant’s spousal relationship
with the H-1B visa holder, and the eligibility of the H-1B visa holder. See 8 C.F.R. §
214.2(H)(9)(iv).
Under existing USCIS regulations, an H-1B worker’s employment authorization
continues while the worker’s timely application for an extension of stay is pending
adjudication. See 8 C.F.R. § 274a.12(b)(20). Should the underlying visa expire before
USCIS adjudicates the extension petition, the H1-B visa holder enjoys an automatic
extension of work authorization for a maximum of 240 days. See id. By contrast, USCIS
has determined that H-4 visa holders are not entitled to automatic extensions of work
authorizations while Form I-539 status renewals are being adjudicated. See Retention of
EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-
Skilled Nonimmigrant Workers, 81 Fed. Reg. 82,398, 82,460 (Nov. 18, 2016) (to be
codified at 8 C.F.R. §§ 204, 205, 214, 245, 274a) [hereinafter Second Notice of Final
Rulemaking]. Thus, under existing USCIS regulations, H-4 visa holders may experience
gaps in employment authorization, even as their H-1B spouses may continue working
pending adjudication of their applications for an extension of stay.
As of March 2019, all applicants applying for H-4 visas must appear at the
application support center closest to the applicant’s residence and provide biometric
information. See 8 C.F.R. § 103.2(b)(9). However, USCIS paused providing in-person
services as of March 18, 2020, until beginning phased reopening July 13, 2020. This
temporary closure created a backlog in biometrics appointments. Because H-4 applications
cannot be adjudicated until a biometrics appointment and EADs cannot be adjudicated until
H-4 applications are adjudicated, the temporary closure created a backlog in adjudications
for EADs.
III. PRELIMINARY INJUNCTION LEGAL STANDARD
The decision to grant or deny a preliminary injunction lies within the sound
discretion of the district court. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760
F.2d 618, 621 (5th Cir. 1985). A preliminary injunction is an extraordinary and drastic
remedy, not to be granted routinely, but only when the movant, by a clear showing, carries
the burden of persuasion. Harris Cty. v. CarMax Auto Superstores, Inc., 177 F.3d 306,
312 (5th Cir. 1999). To obtain a preliminary injunction, the movant must establish the
following: (1) a substantial likelihood that the movant will ultimately prevail on the merits;
(2) a substantial threat that the movant will suffer irreparable injury if the preliminary
injunction is denied; (3) that the potential injury to the movant outweighs whatever damage
the proposed injunction may cause the opposing party; and (4) that granting the preliminary
injunction will not disserve the public interest. Guy Carpenter & Co. v. Provenzale, 334
F.3d 459, 464 (5th Cir. 2003). The first factor is also the “most important factor.” Aamer
v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). “[M]andatory preliminary relief . . .
‘which goes well beyond simply maintaining the status quo pendente lite, is particularly
disfavored, and should not be issued unless the facts and law clearly favor the moving
party.’” Three Expo Events, L.L.C. v. City of Dallas, 182 F. Supp. 3d 614, 622 (N.D. Tex.
2016) (quoting Martinez v. Matthews, 544 F.2d 1233, 1243 (5th Cir. 1976)).
III. THE COURT DENIES PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
A. Mootness and Venue
As a preliminary matter, the Court addresses Defendant’s mootness and venue
arguments. Defendant argues that, of the 314 Plaintiffs in this action, only 7 appear to
reside within the Northern District of Texas and thus, venue is improper. Furthermore,
Defendant claims that numerous of Plaintiffs’ applications have been adjudicated,
rendering their claims moot and depriving the Court of subject matter jurisdiction.
The Court agrees that the claims of Plaintiffs whose work authorizations have been
adjudicated are moot for the purpose of a preliminary injunction. Thus, the Court does not
consider those claims for the purposes of the preliminary injunction motion.
Defendant additionally argues that the Northern District of Texas is an improper
venue for most Plaintiffs. The Court disagrees. Venue is governed by 28 U.S.C. § 1391.
Under this section, “venue is proper as to all plaintiffs if suit is brought in a district where
any one or more of the plaintiffs resides.” Crane v. Napolitano, 920 F. Supp. 2d 724, 746
(N.D. Tex. 2013) (citations omitted). “For over thirty years federal courts have
conclusively and consistently held that the statutory language in 28 U.S.C. § 1391(e)(3)
regarding the residency of ‘the plaintiff’ should be interpreted to mean any plaintiff rather
than all plaintiffs.” A.J. Taft Coal Co. v. Barnhart, 291 F. Supp. 2d 1290, 1301 (N.D. Ala.
2003) (emphasis in original). Here, USCIS has admitted that 7 plaintiffs reside within the
Northern District of Texas. Thus, venue is proper.
B. Unlawfulness Claim
The APA permits courts to “hold unlawful and set aside agency action[s]” found to
be “arbitrary” and “capricious.” 5 U.S.C. § 706(2). “Agency action” includes an agency’s
interpretation of its own regulations. See Nat’l Automatic Laundry & Cleaning Council v.
Shultz, 443 F.2d 689, 698 (D.C. Cir. 1971). Federal courts defer to an agency’s
interpretation of its own regulation if its reading is reasonable, the interpretation represents
the agency’s authoritative or official position, rather than a mere ad hoc statement, the
agency’s interpretation implicates its substantive expertise, and it reflects fair and
considered judgment. See Kisor v. Wilkie, 139 S. Ct. 2400, 2415–17 (2019). If these
criteria are met, the agency has “significant leeway to say what its own rules mean.” Id. at
2418. “Judicial deference to the Executive Branch is especially appropriate in the
immigration context . . . .” I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). However,
“the possibility of deference can only arise if a regulation is genuinely ambiguous.” Kisor,
139 S. Ct. at 2414. If a regulation’s plain text is clear, “uncertainty does not exist, . . . .
The regulation then just means what it means—and the court must give it effect . . . .” Id.
at 2415.
At issue is 8 C.F.R. § 274a.13(d), which governs the automatic extension of EADs.1
Under this regulation, “EADs for certain nonimmigrant workers are automatically
1 (d) Renewal application—
extended for 180 days if the EAD holder submits an application for renewal before the
EAD’s expiration . . . .” Nibber v. U.S. Citizenship & Immigration Servs., No. CV 20-3207
(BAH), 2020 WL 7360215, at *2 n.1 (D.D.C. Dec. 15, 2020). Plaintiffs claim that USCIS’s
interpretation of section 274a.13(d) to deprive H-4 EAD renewal applicants of their
180-day automatic extension constitutes an arbitrary and capricious final agency action.
The Court disagrees. The plain reading of the regulations shows that Plaintiffs do not
qualify for an automatic extension of their work authorization. As the court in Ray noted,
“a work authorization renewal petitioner is eligible for an automatic extension where they
(1) Automatic extension of Employment Authorization Documents. Except as
otherwise provided in this chapter or by law, notwithstanding 8 CFR §
274a.14(a)(1)(i), the validity period of an expiring Employment Authorization
Document (Form I–766) and, for aliens who are not employment authorized
incident to status, also the attendant employment authorization, will be
automatically extended for an additional period not to exceed 180 days from the
date of such document’s and such employment authorization’s expiration if a
request for renewal on a form designated by USCIS is:
(i) Properly filed as provided by form instructions before the expiration date shown
on the fact of the Employment Authorization Document, or during the filing period
described in the applicable Federal Register notice regarding procedures for
obtaining Temporary Protected Status-related EADs;
(ii) Based on the same employment authorization category as shown on the face of
the expiring Employment Authorization Document or is for an individual approved
for Temporary Protected Status whose EAD was issued pursuant to 8 CFR §
274a.12(c)(19); and
(iii) Based on a class of aliens whose eligibility to apply for employment
authorization continues notwithstanding expiration of the Employment
Authorization Document and is based on an employment authorization category that
does not require adjudication of an underlying application or petition before
adjudication of the renewal application, including aliens described in 8 CFR §
274a.12(a)(12) granted Temporary Protected Status and pending applicants for
Temporary Protected Status who are issued an EAD under 8 CFR § 274a.12(c)(19),
as may be announced on the USCIS Web site.
.
belong to a ‘class of aliens whose eligibility to apply for employment authorization
continues notwithstanding expiration of the [EAD] and is based on an employment
authorization category that does not require adjudication of an underlying application or
petition before adjudication of the renewal application . . . .’” Ray v. Cuccinelli, No.
20-CV-6279-JSC, 2020 WL 6462398, at *5 (N.D. Cal. Nov. 3, 2020) (emphasis and
alteration in original) (citing 8 C.F.R. § 274a.13(d)(1)(iii)). “For H-4 visa holders, the
EAD renewal petition requires adjudication of two applications before the petitioner is
eligible for renewal of the EAD: the spouse’s H1-B renewal petition and the H-4 visa
renewal.” Id.; see also Second Notice of Final Rulemaking, 81 Fed. Reg. 82,398, 82,460
(“Thus, before adjudicating a Form I-765 filed by the H-4 nonimmigrant spouse, USCIS
must first make a determination on the principal’s H-1B status, because the spouse derives
his or her status from the principal. USCIS must then adjudicate the H-4 nonimmigrant
spouse’s application for an extension of stay.”). Thus, H-4 visa holders do not fall within
the “class of aliens whose eligibility . . . is based on an employment authorization category
that does not require adjudication of an underlying application . . . .” 8 C.F.R. §
274a.13(d)(1)(iii).
Plaintiffs argue that an automatic extension of employment authorization does not
require adjudication of underlying petitions because H-1B and H-4 visa holders’ lawful
immigration status automatically extends while a petition is pending. In other words,
Plaintiffs argue that H-4 EAD renewal petitions are merely extensions of a benefit attached
to the previous, approved H-4 and H-1B applications and thus do not rely on the
adjudication of the pending petition. However, the relevant regulatory scheme expressly
states that “H-4 nonimmigrant status does not confer eligibility for employment
authorization incident to status.” 8 C.F.R. § 214.2(h)(9)(iv). Even if the H-4 nonimmigrant
retains lawful status, eligibility for employment authorization does not necessarily continue
for the same duration. See Ray, 2020 WL 6462398, at *5.
A plain reading of the regulations shows that Plaintiffs do not qualify for an
automatic extension of their EADs; the Court thus determines that USCIS’s interpretation
is not arbitrary and capricious. Because Plaintiffs have not established that their
unlawfulness claim is likely to succeed on its merits, the Court denies Plaintiffs’ motion
for preliminary injunction as to their unlawfulness claim.
B. Unreasonable Delay
The APA requires an administrative agency to act upon matters presented to it
“within a reasonable time,” 5 U.S.C. § 555(b), and provides that federal courts “shall . . .
compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1).
Although it is well established that the APA does not provide an independent basis for
jurisdiction, Califano v. Sanders, 430 U.S. 99 (1977), the APA’s command that an agency
process matters within a reasonable time, combined with 28 U.S.C. § 1331, creates a
presumption of federal question jurisdiction. See Yu v. Brown, 36 F. Supp. 2d 922, 929
(D.N.M. 1999). Plaintiffs’ unreasonable delay claim under the APA is based on two
theories. See Pls.’ Mot for Expedited Disc. 3 [15-1]. The first theory alleges that the
USCIS took actions in bad faith to slow down adjudication of EADs for H-4 visa holders,
and any resulting delays are thus per se unreasonable. The second theory challenges the
adjudicatory delays under the factors set forth in TRAC, 750 F.2d 70, 80 (D.C. Cir. 1984).
Because bad faith is one of the TRAC factors, the Court will discuss both theories together.
TRAC, 750 F.2d 70 (D.C. Cir. 1984), sets out various factors used in determining
whether an agency’s delay is unreasonable under the APA. These include:
(1) the time agencies take to make decisions must be governed by a “rule of
reason;” (2) where Congress has provided a timetable or other indication of
the speed with which it expects the agency to proceed in the enabling statute,
that statutory scheme may supply content for this rule of reason; (3) delays
that might be reasonable in the sphere of economic regulation are less
tolerable when human health and welfare are at stake; (4) the court should
consider the effect of expediting delayed action on agency activities of a
higher or competing priority; (5) the court should also take into account the
nature and extent of the interests prejudiced by delay; and (6) the court need
not “find any impropriety lurking behind agency lassitude in order to hold
that agency action is ‘unreasonably delayed.’”
Id. at 79–80 (citations omitted). Both parties agree that the TRAC factors apply to
unreasonable delay claims under the APA. The Court notes that “[w]hat constitutes an
unreasonable delay in the context of immigration applications depends to a great extent on
the facts of the particular case.” Ahmadi v. Chertoff, 522 F. Supp. 2d 816, 822 (N.D. Tex.
2007). Application of the TRAC factors may turn on the particularized facts of the hundreds
of Plaintiffs in this case. However, the Court addresses the TRAC factors for the purposes
of the preliminary injunctive relief requested.2
2 The Court notes that it is not the first to consider the issue of H-4 EAD delays under the
TRAC factors. See, e.g., Verma, v. U.S. Citizenship and Immigration Servs., No. CV 20-
3419 (RDM), 2020 WL 7495286, at *6 (D.D.C. Dec. 18, 2020); Ray, 2020 WL 6462398,
at *9 (N.D. Cal. Nov. 3, 2020); Muvvala v. Wolf, No. 1:20-CV-02423 (CJN), 2020 WL
5748104, at *3 (D.D.C. Sept. 25, 2020). Plaintiffs’ counsel has filed scores of nearly
identical cases across the country alleging unreasonable delay in processing work
authorizations for H-4 visa holders. See Def.’s Resp. 7 n.3 [22]. Thus far, courts have
1. Rule of Reason and Timetable. – The first two TRAC factors relate to the time
agencies take to make decisions and whether such timetable has been provided by
Congress. Here, USCIS alleges that Congress has not provided a timetable for H-4 EAD
adjudication and that USCIS generally adjudicates applications on a first-in, first-out basis,
with a select few applications being expedited to criteria set forth by the agency. Plaintiffs
argue that USCIS failed to provide support for this proposition, and that USCIS does not
actually adjudicate cases in chronological order. Plaintiffs point to the fact that the agency
has adjudicated nearly 10% of the delays in this case out of chronological order. However,
as noted by USCIS, applications may be expedited under various criteria, and the fraction
of delays that are out of chronological order are insufficient to establish that the USCIS
does not apply a first-in, first-out rule of reason. The Court agrees with the case law in
which federal courts have held that USCIS operates under a first-in, first-out method of
adjudication that constitutes a “rule of reason” and satisfies the first TRAC factor. See, e.g.,
Ray, 2020 WL 6462398, at *9. Thus, the first TRAC factor weighs in favor of USCIS.
The second TRAC factor considers whether “Congress has provided a timetable or
other indication of the speed with which it expects the agency to proceed in the enabling
statute.” In re Core Commc’ns, 531 F.3d at 855. Section 1571 does not establish a
“mandatory timeline” regarding the adjudication of H-4 status and EAD renewal petitions.
See 8 U.S.C. § 1571; Ray v. Cuccinelli, 2020 WL 6462398, at *8. “Congress has not
provided a specific timetable by which USCIS must process applications to extend H-4
generally denied Plaintiffs’ motions for preliminary injunction and to expedite discovery.
See, e.g., Ray, 2020 WL 6462398.
status or renew EADs.” Muvvala v. Wolf, 2020 5748104, at *3 (D.D.C. Sept. 25, 2020).
Nonetheless, section 1571(b) states that “[i]t is the sense of Congress that the processing
of an immigration benefit application should be completed not later than 180 days . . .
except that a petition for a nonimmigrant visa under section 1184(c) of this title should be
processed not later than 30 days after the filing of the petition.” 8 U.S.C. § 1571(b).
Although some courts have noted that this preamble may be “precatory” or “non-binding,”
Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518, 528 n.26 (D.C. Cir. 2015), the second TRAC
factor requires only some “indication of the speed with which [Congress] expects the
agency to proceed.” See TRAC, 750 F.2d at 80. Thus, although Congress did not mandate
a timetable, it expressed some indication of the timeline in which USCIS should operate.
See Verma, 2020 WL 7495286, at *7. Nonetheless, the Court declines to adopt Plaintiffs’
claim that “[a]ny delay beyond 180 days should be presumptively, and per se
unreasonable.” Doing so would “transmogrify an aspiration into a deadline.” Chuttani v.
United States Citizenship & Immigration Servs., No. 3:19-CV-02955-X, 2020 WL
7225995, at *3 (N.D. Tex. Dec. 8, 2020). Moreover, the Court has found no authority
suggesting that time alone can establish unreasonable delay. To the contrary, courts have
held that unreasonable delay “cannot be decided in the abstract, by reference to some
number of months or years beyond which agency inaction is presumed unlawful.” Liberty
Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 115 (D.D.C. 2005) (quoting Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003)). Here,
the Court cannot definitively say whether the second TRAC factor weighs in favor of either
party. Plaintiffs filed their applications at different times, and while some Plaintiffs have
waited over six months, others have not. While the second TRAC factor weighs in favor
of Plaintiffs who have waited over six months, this “does not carry as much weight as
would a statutory deadline.” Verma, 2020 WL 7495286, at *7.
2. Human Health and Prejudice. – The third factor is closely related with the fifth
factor. These factors consider “whether a delay is ‘less tolerable’ because ‘human health
and welfare are at stake’ and ‘the nature and extent of the interests prejudiced by delay.’”
Id. (citing In re Core Commc’ns, 531 F.3d at 855). Although USCIS argues that Plaintiffs’
interests do not “rise to a level that would significantly change the assessment of
unreasonableness,” Liberty Fund, 394 F. Supp. 2d 105, 118 (D.D.C. 2005), the Court
disagrees. In Liberty Fund, the court was confronted with delays in adjudicating
applications for permanent labor certifications. The impact on human welfare was “not of
a sufficient magnitude,” particularly when the alleged impact consisted of relatively minor
harms such as an inability “to locate an able, willing and qualified U.S.” child-monitor or
“potential ineligibility for promotion.” Id. at 119. Here, delays in work authorization result
in the complete loss of Plaintiffs’ ability to support themselves and their families, including
their children. Plaintiffs are unable to renew their driver’s licenses and may lose health
insurance as a result of unemployment. The Court determines that the third and fifth TRAC
factors weigh in Plaintiffs’ favor.
3. Effect of Expedited Adjudication. – Factor four requires the Court to consider
the effect that expedited adjudication has on “agency activities of a higher or competing
priority.” TRAC, 750 F.2d at 80. This factor weighs strongly in favor of USCIS. If the
Court grants Plaintiffs’ requested relief, a judicial order putting Plaintiffs at the head of the
queue simply moves all others back one space and produces no net gain. See Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (citing
In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991)). Although Plaintiffs attempt to
differentiate Mashpee based on the relatively short time needed to adjudicate H-4 EADs,
the Court is not convinced. The core issue in granting relief is not the relative ease in which
USCIS might be able to expedite Plaintiffs’ applications, but the ensuing inequity for other
applicants who must wait longer. Any time saved by Plaintiffs is necessarily lost by other
applicants, and further inefficiencies are added into the system when the Court compels
USCIS to move applicants in the queue. Because granting Plaintiffs relief only harms other
applicants, the Court determines that the fourth TRAC factor weighs in USCIS’s favor.
Fangfang Xu v. Cissna, 434 F. Supp. 3d 43, 55 (S.D.N.Y. 2020).
4. Bad Faith. – Finally, factor six assesses the “bad faith” of the agency’s decisions.
“A delay that is a result of bad faith—that is, a delay for improper reasons—is a delay that
is per se unreasonable . . . .” Tummino v. Von Eschenbach, 427 F. Supp. 2d 212, 231
(E.D.N.Y. 2006). Plaintiffs argue that two of USCIS’s decisions, namely, the decision to
impose a biometric requirement and the decision to adjudicate applications sequentially,
were implemented in bad faith and any resulting delays are thus per se unreasonable. “To
find that an agency acted in bad faith, however, a party must present evidence ‘of bad faith
or impropriety driving the delay in adjudication’ of the relevant applications.” Ray, 2020
WL 6462398, at *11 (collecting cases).
In support of its proposition that USCIS acted in bad faith, Plaintiffs aver that
USCIS already possesses Plaintiffs’ biometric information and that USCIS implemented
sequential adjudication based on improper and inaccurate information from organizations
seeking to discourage lawful immigration. Moreover, Plaintiffs allege that USCIS has
waived biometric requirements for other benefits, but not for H-4 visa holders.
At this stage in the litigation, the Court has little evidence that USCIS acted in bad
faith. While Plaintiffs are correct in stating that circumstantial evidence may prove their
case, a preliminary injunction is an extraordinary and drastic remedy, not to be granted
routinely, but only when the movant, by a clear showing, carries the burden of persuasion.
Harris Cty. v. CarMax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999). The
limited circumstantial evidence, namely a potentially redundant biometrics requirement
and the timing of a meeting with Immigration Reform Law Institute, is a far cry from “facts
and law clearly favor[ing] the moving party,” particularly for a preliminary injunction.
Three Expo Events, 182 F. Supp. 3d at 622 (quoting Martinez, 544 F.2d at 1243). Thus,
the Court determines that Plaintiffs have not met their burden in establishing bad faith.
On balance, the Court finds that Plaintiffs have not shown a likelihood of success
on the merits of their unreasonable delay claim. Here, Plaintiffs are not merely asking the
Court to maintain the status quo through a preliminary injunction, but actively to compel
USCIS to place Plaintiffs at the front of the queue. Although Plaintiffs have demonstrated
that “human health and welfare are at stake,” the bulk of the TRAC factors weighs in favor
of USCIS. Because Plaintiffs have failed to meet their burden in showing that their claims
are likely to succeed on their merits, the “most important factor,” Aamer, 742 F.3d at 1038,
the Court denies Plaintiffs’ motion for a preliminary injunction.
IV. THE COURT DENIES PLAINTIFFS’ MOTION FOR EXPEDITED DISCOVERY
While the Federal Rules of Civil Procedure do not provide a rule for expedited
discovery, the Fifth Circuit has adopted a “good cause” standard to determine whether
expedited discovery is appropriate. See U.S. Commodity Futures Trading Comm’n v. M25
Investments, Inc., No. 3:09-CV-1831-M, 2009 WL 3740627, at *1 (N.D. Tex. Sept. 29,
2009); St. Louis Grp., Inc. v. Metals & Additives Corp., 275 F.R.D. 236, 240 (S.D. Tex.
2011). “Courts commonly consider the following factors in determining whether ‘good
cause’ exists to order expedited discovery: ‘(1) whether a preliminary injunction is
pending; (2) the breadth of the discovery requests; (3) the purpose for requesting the
expedited discovery; (4) the burden on the defendants to comply with the requests; and (5)
how far in advance of the typical discovery process the request was made.’” St. Louis Grp.,
Inc., 275 F.R.D. at 241 n.4 (quoting In re Fannie Mae Derivative Litigation, 227 F.R.D.
142, 143 (D.D.C. 2005)).
Plaintiffs seek expedited discovery in the form of 5 interrogatories, 5 requests for
production, and a potential Rule 30(b)(6) deposition from an unidentified deponent.
Plaintiffs seek information regarding the composition of the Senior Policy Council at
USCIS allegedly responsible for making the decisions to impose biometric requirements
and to adjudicate H-4 status and work authorizations sequentially. Plaintiffs seek
additional information regarding the documents relied upon in making these decisions,
communications about these decisions, and the rationales for making these decisions.
The Court determines that Plaintiffs have not shown good cause and thus denies
Plaintiffs’ motion for expedited discovery. The scope of Plaintiffs’ discovery requests is
broad and reaching, and the Court declines to permit Plaintiffs the extraordinary remedy of
expedited discovery based on mere speculation into USCIS’s bad faith implementation of
its policies. Thus far, Plaintiffs have only presented evidence that USCIS imposed a
biometrics requirement and adjudicates applications sequentially, and that these decisions
delayed the adjudication process. This alone does not demonstrate good cause, particularly
in light of the Court’s determination that Plaintiffs are unlikely to succeed on the merits.
Moreover, because the Court has already denied Plaintiffs’ motion for preliminary
injunction, there is no good reason to expedite discovery. Thus, the Court denies Plaintiffs’
motion for expedited discovery.
CONCLUSION
For the reasons set forth above, the Court denies Plaintiffs’ motion for a preliminary
injunction and motion for expedited discovery.
Signed January 17, 2021.
United States District Judge
MEMORANDUM OPINION AND ORDER — PAGE 17