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Courts cannot compel U.S. Citizenship and Immigration Services (USCIS) to issue work authorizations, but they can evaluate the reasonableness of processing delays, U.S. District Court Judge Brandy R. McMillion ruled Thursday. This decision reversed her prior dismissal of a proposed class action brought by U-visa petitioners.

In September, Judge McMillion had dismissed the lawsuit citing lack of standing. However, following a motion to alter the judgment, the court recognized it could consider whether USCIS has unreasonably delayed making "bona fide determinations," the initial step in its overwhelmed process.

The U-visa petitioners clarified in their motion that they were not asking the court to force USCIS to issue work authorizations. Instead, they sought to have the agency make the initial determinations necessary for processing their work authorizations.

“This is factually distinct from how the court analyzed the motion to dismiss,” Judge McMillion explained. “Consequently, to prevent manifest injustice, the court finds that plaintiffs do have standing to request a decision with respect to the issuance of a [bona fide determination].”

The proposed class action represents approximately 170,000 individuals applying for green cards through a visa program designed for crime victims who assist law enforcement with investigations.

In response to a surge in applications exceeding visa availability, USCIS announced in 2021 that it would grant discretionary work permits and removal relief to individuals with "bona fide" petitions. Yet, noncitizens have reported waiting years for these determinations, despite their potential to be resolved within minutes. The delays have left many without work authorization or deportation protection and, in some cases, dependent on abusive partners.

Although USCIS has the authority to establish, modify, or eliminate its bona fide determination process, the court can intervene if delays become unreasonable, Judge McMillion noted. She ordered the federal government to respond to the complaint by January 23.

“USCIS' delays affect noncitizens every day, especially in the context of certain crime victims waiting on the adjudication of their U visa cases, which often takes five years or longer for a preliminary adjudication,” said Meredith Luneack, a staff attorney with the Michigan Immigrant Rights Center.

“Today, the court ruled that our clients have been injured by these delays. We look forward to continuing this advocacy in addressing these unreasonable and injurious delays,” Luneack added.

Representatives for the federal government did not immediately respond to a request for comment.

The plaintiffs are represented by attorneys Kurt Mathas, Elizabeth Deshaies, Savannah Murin, and Greer Harrison of Winston & Strawn LLP; Mark Fleming, Richard Caldarone, and Jess Hunter-Bowman of the National Immigrant Justice Center; and Meredith Luneack of the Michigan Immigrant Rights Center.

The federal government is represented by Brian M. Boynton, William C. Peachey, Samuel P. Go, Stephanie Elizabeth Gibbs, and Malcolm McDermond of the U.S. Department of Justice.

The case is A.M.P. et al. v. U.S. Department of Homeland Security et al., case number 2:23-cv-13230, in the U.S. District Court for the Eastern District of Michigan.