REYES OLMOS v. CITIZENSHIP AND IMMIGRATION SERVICES (2025)

MEMORANDUM AND ORDER

The plaintiffs have filed this lawsuit to challenge the unlawful delays and inaction in processing applications for U nonimmigrant status filed by eligible noncitizen crime victims. (Filing No. 27). Pursuant to 5 U.S.C. § 706(1), the plaintiffs seek to compel the U.S. Citizenship and Immigration Services (“USCIS”); Kika Scott,¹ the Director of USCIS; and Kristi Noem,² the Secretary of DHS; to determine whether the plaintiffs’ pending applications for U status are bona fide such that they may be eligible for interim benefits, including work authorization and deferred action, while their applications for U status are considered. (Filing No. 27 at p. 2). Alternatively, certain plaintiffs seek to compel the USCIS to place them on the regulatory waitlist, as required by 8 C.F.R. § 214.14(d)(2). Id. The defendants have moved to dismiss the plaintiffs’ second amended complaint, asserting the Court does not have jurisdiction over the plaintiffs’ claims pursuant to Fed. R. Civ. P. 12(b)(1); that the plaintiffs have failed to state a cognizable legal claim pursuant to Fed. R. Civ. P. 12(b)(6); and/or that the plaintiffs’ claims are improperly joined under Fed. R. Civ. P. 20 such that the Court should sever and dismiss the claims of all but the lead plaintiff. (Filing No. 28).

BACKGROUND

As set forth in the plaintiffs’ second amended complaint, Congress enacted the U Visa statute in 2000 to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes ․ committed against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.” (Filing No. 27 at pp. 5-6) (citing 8 U.S.C. § 1101(a)(15)(U)). U Visas are available to foreign nationals who are the victims of serious crimes such as rape, kidnapping, or assault and who possess important information about the crime. In order to apply for a U Visa, a foreign national must have a signed certification from a federal, state, or local law enforcement agency verifying that he or she is assisting in the investigation or prosecution of the qualifying crime. (Filing No. 27 at p. 6) (citing 8 C.F.R. § 214.14).

Congress has allocated only 10,000 U Visas per fiscal year since the visa's inception, not including derivative applicants. In fiscal year 2022, USCIS received 29,700 U status applications, and by the end of the year, there were 188,974 pending U status applications, excluding applications filed by qualifying family members. (Filing No. 27 at p. 8). To address this problem, USCIS created a regulatory waiting list for applicants who are qualified to receive a U Visa but are unable to receive one immediately due solely to the cap. (Filing No. 27 at pp. 8-9) (citing 8 C.F.R. § 214.14(d)(2)). Once an applicant is moved to the waiting list, he or she receives deferred action (protection from removal) or parole, and are eligible to receive work authorization. (Filing No. 27 at p. 9). While the waiting list helped address the issue of otherwise eligible immigrants who were without protections or work authorization due solely to the U Visa statutory cap, it created its own backlog because a waiting list determination (“WLD”) requires USCIS to assess the full merits of an application.

In 2008, Congress recognized that wait times for the U Visa waiting list were growing and U Visa applicants now needed pre-waiting list work authorization, stating U Visa applicants “should not have to wait for up to a year before they can support themselves and their families,” such that the USCIS should strive to issue work authorization within 60 days of filing. (Filing No. 27 at pp. 9-10) (quoting 154 Cong. Rec. H10,888, 10,905 (Dec. 10, 2008) (statement of Reps. Berman and Conyers), 2008 WL 5169865). Congress therefore allowed pre-waiting list work authorization for “any alien who has a pending, bona fide application for [U] status,” commonly referred to as a bona fide determination. (Filing No. 27 at p. 10) (quoting 8 U.S.C. § 1184(p)(6)). This “fix” was intended to ensure that U status applicants could swiftly obtain work authorization and earn a living while assisting law enforcement as they wait for a space on the waiting list and then as they wait for a U Visa to become available under the statutory cap.

Thirteen years after it was enacted, on June 14, 2021, USCIS implemented 8 U.S.C. § 1184(p)(6) and created the Bona Fide Determination (“BFD”) Process. (Filing No. 27 at p. 10) (citing USCIS, Policy Alert, Bona Fide Determination Process for Victims of Qualifying Crimes, and Employment Authorization and Deferred Action for Certain Petitioners, Jun. 14, 2021 ³ ). USCIS issues a BFD to derivative U status applicants if: (1) the principal U applicant has received a BFD; (2) they have submitted a complete Form I-918A; (3) they have submitted evidence of the qualifying family relationship; and (4) they have completed background and security checks based on biometrics. (Filing No. 27 at p. 11). If USCIS denies a BFD, the applicant awaits a WLD instead. The plaintiffs allege the defendants have unreasonably delayed the issuance of BFDs, employment authorization determinations (“EADs”) and deferred action to all plaintiffs. (Filing No. 27 at p. 13). Additionally, the plaintiffs have alleged the defendants have unreasonably delayed WLDs, EADs, and deferred action to the Waiting List plaintiffs. (Filing No. 27 at p. 13). The agency indicated as of October 15, 2024, that 80% of applications at all of the agency's service centers will be processed in 54.5 months. (Filing No. 27 at p. 16).

Twenty plaintiffs filed a Complaint in this action on October 6, 2023, (Filing No. 1). The plaintiffs filed a First Amended Complaint on November 13, 2023, (Filing No. 9), and after obtaining leave from the Court, filed a Second Amended Complaint on October 15, 2024, (Filing No. 27). The remaining plaintiffs are eight principal U visa petitioners and four derivative U Visa petitioners that have filed and have pending applications for U status filed in accordance with 8 U.S.C. § 1184(p)(6) and USCIS's BFD process. (Filing No. 27 at pp. 19-21; Filing No. 27-1 at pp. 2-6). The principal U status applicant plaintiffs have submitted complete Form 1-918; submitted a complete Form I-918; submitted a complete Form I-918B; submitted a personal statement; and completed background and security checks based on biometrics. (Filing No. 27 p. 13). The derivative U status applicant plaintiffs have submitted a complete Form I-918A; submitted evidence of their qualifying family relationship to the principal; and have completed background and security checks based on biometrics. (Filing No. 27 p. 13). All the plaintiffs have pending I-765 applications and are eligible for deferred action and EADs upon a determination by USCIS that their applications for U status are bona fide in accordance with 8 U.S.C. § 1184(p)(6) and USCIS's BFD process or, for the Waiting List plaintiffs, upon USCIS's decision to place them on the waiting list. (Filing No. 27 p. 13).

In their second amended complaint, the plaintiffs assert a claim against the defendants for unreasonable delay in violation of the Administrative Procedure Act (APA), 5 U.S.C. §§ 555(b), 706(1), for “fail[ing] to comply with their statutory obligation to adjudicate Plaintiffs’ U status applications and issue BFDs and BFD EADs within a reasonable time.” (Filing No. 27 at p. 23). The plaintiffs contend this claim is reviewable because “USCIS is required to make a BFD decision and, under Defendants’ binding policies, determine eligibility for a BFD EAD.” (Filing No. 27 at p. 24). The plaintiffs assert the defendants have failed to adjudicate the plaintiffs’ U status applications and issue them BFDs and BFD EADs as required by the agency's BFD process and 8 U.S.C. § 1184(p)(6). (Filing No. 27 at pp. 23-25).

The plaintiffs also assert a claim against the defendants for unreasonable delay in violation of the Administrative Procedure Act (APA), 5 U.S.C. §§ 555(b), 706(1), for “fail[ing] to comply with their discrete, nondiscretionary duty to Waiting List Plaintiffs to adjudicate their U status applications, place them on the waiting list, and issue them deferred action within a reasonable time.” (Filing No. 27 at pp. 25-26). The plaintiffs contend this claim is reviewable because “Defendants have a nondiscretionary duty to adjudicate the Waiting List Plaintiffs’ U status applications, place them on the waiting list, and issue them deferred action” pursuant to 8 C.F.R § 214.14(d)(2). (Filing No. 27 at p. 25).

Finally, the plaintiffs have asserted a claim under the Mandamus Act, 28 U.S.C. § 1361 and All Writs Act, 28 U.S.C. § 1651(a). (Filing No. 27 at p. 26). The plaintiffs claim in the alternative that the Court has jurisdiction to compel a United States agency or an officer or employee thereof to perform a nondiscretionary duty. Id. (citing 28 U.S.C. § 1361). The plaintiffs further allege the Court has jurisdiction to issue all writs necessary or appropriate in aid of its respective jurisdictions and agreeable to the usages and principles of law. Id. (citing 28 U.S.C. § 1651(a)). The plaintiffs assert the defendants have a nondiscretionary duty to determine whether the plaintiffs’ pending U status applications are bona fide within the meaning of 8 U.S.C. § 1184(p)(6) and USCIS's binding regulations, including, but not limited to, USCIS Policy Manual, Volume 3, Chapter 5, Bona Fide Determination Process, and whether the plaintiffs are eligible for work authorization and deferred action. (Filing No. 27 at pp. 26-27). By failing or refusing to determine whether the plaintiffs’ pending U status applications are bona fide, the defendants have failed to perform nondiscretionary duties owed to the plaintiffs. (Filing No. 27 at p. 27). The plaintiffs also assert the defendants have a nondiscretionary duty under 8 C.F.R. § 214.14(d)(2) to determine whether Waiting List plaintiffs are eligible for placement on the waiting list and issue them deferred action or parole. (Filing No. 27 at p. 27). By failing to determine whether their pending U status applications are eligible for placement on the waiting list, the defendants have failed to perform nondiscretionary duties owed to Waiting List plaintiffs. Id.

The plaintiffs ask the Court to “Declare that Defendants’ actions and omissions in failing to timely issue BFDs in Plaintiffs’ cases violate 5 U.S.C. §§ 555(b) and 706(1), 8 U.S.C. § 1184(p)(6) and 8 C.F.R. § 214.14(d)(2);” “Order Defendants to timely issue bona fide determinations;” “Declare that Defendants’ actions and omissions in failing to place Waiting List Plaintiffs on the Waiting List violate 5 U.S.C. §§ 555(b) and 06(1), 8 C.F.R. § 1184(p)(6) and 8 C.F.R. § 214.14(d)(2);” “Order Defendants to timely place eligible Plaintiffs on the Waiting List;” “Order Defendants to timely grant Plaintiffs deferred action;” “Order Defendants to timely adjudicate Plaintiffs’ applications for employment authorization;” and to award attorney's fees. (Filling No. 27 at pp. 27-28).

The defendants moved to dismiss the plaintiffs’ second amended complaint, asserting the Court does not have jurisdiction over the plaintiffs’ claims to compel such discretionary action pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). (Filing No. 28). Further, the defendants move to dismiss the plaintiffs’ second amended complaint for “fail[ing] to state a claim upon which the Court can grant relief.” (Filing No. 28 at p. 1). Alternatively, the defendants argue all but the lead plaintiff's claims should be dismissed without prejudice because the plaintiffs are improperly joined under Federal Rule of Civil Procedure 20. (Filing No. 28 at p. 1).

STANDARDS OF REVIEW

A. Rule 12(b)(1)

A motion pursuant to Fed. R. Civ. P. 12(b)(1) challenges whether the court has subject matter jurisdiction. Rule 12(b)(1) motions can be decided in three ways: at the pleading stage, like a Rule 12(b)(6) motion; on undisputed facts, like a summary judgment motion; and on disputed facts. Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008). The party asserting subject matter jurisdiction bears the burden of proof. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). The court has “substantial” authority to determine whether it has jurisdiction. Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990).

A court deciding a motion under Rule 12(b)(1) must distinguish between a “facial attack” and a “factual attack.” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015). A facial attack is one in which the “defendant asserts that the complaint fails to allege sufficient facts to support subject matter jurisdiction.” Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018). In analyzing a facial attack, the court must restrict “itself to the face of the pleadings” and grant “the non-moving party ․ the same protections” given in a Rule 12(b)(6) motion. Id. (quoting Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)).

In a factual attack, the jurisdictional issue raised by a Rule 12(b)(1) motion is “ ‘bound up’ with the merits of the case,” Croyle ex rel. Croyle v. United States, 908 F.3d 377, 380 (8th Cir. 2018) (quoting Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018)), because the defendant has “challenge[d] the veracity of the facts underpinning subject matter jurisdiction,” Davis, 886 F.3d at 679 (quoting Kerns, 585 F.3d at 193). The court is not bound by Rule 12(b)(6) standards of review in its analysis of a factual attack, and can consider matters outside of the pleadings and need not accept the allegations in the complaint as true. Branson Label, Inc. v. City of Branson, 793 F.3d 910, 915 (8th Cir. 2015). The defendants’ challenge to this Court's jurisdiction is a factual attack.

B. Rule 12(b)(6)

A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain detailed factual allegations but must provide more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For the purposes of a motion to dismiss, a court must take all of the factual allegations in the complaint as true but is not bound to accept as true a legal conclusion couched as a factual allegation. Id. The court ordinarily does not consider matters outside the pleadings on a motion to dismiss, see Fed. R. Civ. P. 12(d), but the court may “consider the pleadings themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record.” Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011) (quoting Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010)).

And to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but has not shown—that the pleader is entitled to relief. Id. at 679.

Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiff's claim. See Twombly, 550 U.S. at 545. The court must assume the truth of the plaintiff's factual allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 556.

ANALYSIS

A. Plaintiff Marisol Cruz Solis’ Claims

The defendants first assert the Court lacks subject matter jurisdiction over Plaintiff Marisol Cruz Solis’ claims due to post-filing developments, rendering them moot. (Filing No. 28 at p. 8). Mootness is “a jurisdictional bar, and must be considered before reaching the merits of the case.” Ark. AFL-CIO v. F.C.C., 11 F.3d 1430, 1435 (8th Cir. 1993). A change in a plaintiff's circumstances may render a claim moot, preventing “a federal court from granting effective relief.” Id. (citations omitted). The Court is required to dismiss a moot claim for lack of subject-matter jurisdiction. See Calderon v. Moore, 518 U.S. 149, 150 (1996); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).

Plaintiff Marisol Cruz Solis filed a U visa petition and seeks a BFD, WLD, and the issuance of an EAD. (Filing No. 27 at p. 27-28). On September 27, 2024, Ms. Cruz Solis was notified of a positive BFD and was approved for an EAD. See Filing No. 28-1 at pp. 1-5. The defendants allege the issuance of a positive BFD and EAD moots Ms. Cruz Solis’ claim. (Filing No. 28 at p. 8). However, Ms. Cruz Solis has yet to receive a WLD. Dismissing her claims when she has only received part of the relief sought would allow the USCIS to elude review of the alleged violations. See Mir at al v. Jaddou, 4:23-cv-03046-JFB-MDN, Filing No. 37 at *10-11 (D. Neb. Dec. 8, 2023) (citing Turner v. Rogers, 564 U.S. 431, 440 (2011) (explaining the exception to mootness that arises when a claim can be repetitious yet eludes review)). Therefore, the Court denies the defendants’ motion to dismiss Plaintiff Marisol Cruz Solis’ WLD claim.

B. The BFD Claims

The defendants contend 8 U.S.C. § 1252 (a)(2)(B)(ii), in combination with 5 U.S.C. § 701(a)(1), bar review of the plaintiffs’ BFD claims by stripping the court of jurisdiction. (Filing No. 28). Under the APA, the Court lacks jurisdiction to review agency decisions barred by statute. See 5 U.S.C. § 701(a)(1). Judicial review of decisions that are in the “discretion of the Attorney General or the Secretary of Homeland Security ․” are barred under 8 U.S.C. § 1252(a)(2)(B)(ii). The defendants assert the BFD process is discretionary, thereby barring review of the plaintiffs’ claims under 5 U.S.C. § 701(a)(1) and 8 U.S.C. § 1252(a)(2)(B)(ii). (Filing No. 28 at p. 9). Thus, the defendants claim the Court lacks jurisdiction to review the speed and process in which the USCIS adjudicates BFDs, alleging 8 U.S.C. § 1184(p)(6) is “wholly discretionary,” and subsequently judicial review is barred by 8 U.S.C. § 1252(a)(2)(B)(ii) and 5 U.S.C. § 701(a)(1).

The BFD process is codified under 8 U.S.C. § 1184(p)(6), which provides, “The [DHS] Secretary may grant employment authorization documents to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U) of this title.” 8 U.S.C. § 1184(p)(6). The Fourth and Sixth Circuits have reached opposing conclusions as to whether a federal court has jurisdiction to adjudicate a claim for unreasonable delay in agency action under this statute. Compare Gonzalez v. Cuccinelli, 985 F.3d 357 (4th Cir. 2021) with Barrios Garcia v. U.S. Dep't of Homeland Sec., 25 F.4th 430, 436 (6th Cir. 2022).

In Gonzalez, which was decided prior to implementation of the USCIS BFD policy guidance, the Fourth Circuit held that such claims were unreviewable under § 1252(a)(2)(B)(ii), reasoning that the Secretary's discretion to grant work authorizations extended to discretion in implementing the statutory provision at all. Gonzalez, 985 F.3d at 366. The Fourth Circuit stated, “[t]he discretion afforded to the agency over how to address work-authorization requests means that consideration of every work-authorization request is not ‘required’ under Norton [v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)].” Id. at 368-69 (“As the agency is not required to adjudicate pre-waiting-list work authorizations, no agency action exists to compel.”).

The Sixth Circuit in Barrios Garcia, decided after the implementation of the USCIS policy guidance, came to the opposite conclusion. The Sixth Circuit disagreed with the Fourth Circuit's “front to back” reading of 8 U.S.C. § 1184(p)(6)—“i.e., USCIS may exercise its discretion to adjudicate a prewaitlist work-authorization application and then determine whether a U-visa application is pending and bona fide as a prerequisite to granting work authorization.” Barrios Garcia, 25 F.4th at 444. Instead, the Sixth Circuit concluded the better reading is “back to front”—“i.e., USCIS must determine whether a U-visa application is pending and bona fide before the agency ‘may’ grant work authorization to the petitioner.” Id.

Although the defendants assert Barrios Garcia was “wrongly decided,” this Court finds its reasoning persuasive. As explained by Barrios Garcia, the USCIS's policy manual suggests 8 U.S.C. § 1184(p)(6) is best interpreted by reading the statute back to front. See USCIS, Policy Manual, Vol. 3, Part C, Ch. 5, https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5 (last visited April 10, 2025) (“USCIS first determines whether a pending petition is bona fide. Second, USCIS, in its discretion, determines whether the petitioner poses a risk to national security or public safety, and otherwise merits a favorable exercise of discretion.”) (emphasis added); see also Barrios, 25 F.4th at 444 (“We treat § 1184(p)(6) as ․ requiring the DHS Secretary to decide if an application is ‘pending’ and ‘bona fide’ before the agency can wield its discretion to grant an applicant work authorization.”). And reading 8 U.S.C. § 1184(p)(6) back to front suggests the USCIS has a nondiscretionary obligation to make BFDs prior to exercising its discretion over the EAD process. The discretion granted by § 1184(p)(6) applies to the decision to grant an EAD—the determination as to whether an application is pending and bona fide is a necessary prerequisite to that discretion. The BFD process itself is not “specified ․ to be in the discretion of the Attorney General or the Secretary of Homeland Security,” and review is therefore not barred by 8 U.S.C. § 1252(a)(2)(B)(ii). Moreover, the USCIS has an obligation pursuant to the APA to review the plaintiffs’ applications within a reasonable time. See 5 U.S.C. § 555(b); 5 U.S.C. § 701(a)(1). If the Court determines the USCIS has unreasonably delayed concluding a nondiscretionary matter brought to its attention, the Court has the authority to “compel agency action.” 5 U.S.C. § 706(1). Therefore, the Court concludes it has subject matter jurisdiction to review the plaintiffs’ claims alleging unreasonable delays in the BFD process by the USCIS. See also Mir, 4:23-cv-03046-Filing No. 37 at *13-15.

C. The WLD Claims

The defendants also contend the Plaintiffs’ WLD claims should be dismissed because (1) the Court lacks jurisdiction to review the plaintiffs’ WLD claims as they are not ripe, and (2) the plaintiffs have failed to state a plausible claim for relief. (Filing No. 28 at pp. 24-25). The defendants’ argument rests on a BFD being a prerequisite to a WLD that “the USCIS must first resolve ․ before making a WLD.” (Filing No. 28 at p. 25). Because the USCIS is required pursuant to 8 C.F.R. § 214.14(d)(2) to place all eligible petitioners onto the waiting list, the Court finds it has jurisdiction over the plaintiffs’ WLD claims, which also state a plausible claim for relief under the APA.

“Congress rarely intends to prevent courts from enforcing its directives to federal agencies. For that reason, th[e] [United States Supreme] Court applies a ‘strong presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (citing Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986)). 8 C.F.R. § 214.14(d)(2) provides, “All eligible petitioners who, due solely to the cap, are not granted U–1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement.” Through 8 C.F.R. § 214.14(d)(2), Congress imposed a nondiscretionary obligation on the USCIS to place eligible petitioners on the waiting list. See Barrios, 25 F.4th at 436, 445 (explaining that placing eligible petitioners on the waiting list is mandatory, and “hold[ing] that the federal courts may compel USCIS to place principal petitioners on the U-visa waitlist when an unreasonable delay has occurred per 5 U.S.C. § 706(1).”); Lara Santiago v. Mayorkas, 554 F.Supp.3d 1340, 1347 (N.D. Ga. 2021) (stating that the provision in 8 C.F.R. § 214.14(d)(2) is mandatory and concluding the court had jurisdiction to hear claims of alleged unreasonable delays in WLDs); Gonzalez, 985 F.3d at 361-64 (concluding that if a petitioner is eligible but due solely to the cap is not awarded a visa, the USCIS “must” place the petitioner on the waiting list and the court has jurisdiction to hear claims of unreasonable delays in WLDs).

Pursuant to the APA, the USCIS is required to complete matters received “within a reasonable time,” 5 U.S.C. § 555(b), and courts are authorized to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1). Because the USCIS is required to place eligible petitioners on the waiting list, within a reasonable time pursuant to 5 U.S.C. § 555(b), the Court has jurisdiction to review the claims of alleged unreasonably delayed or unlawfully withheld WLDs pursuant to 5 U.S.C. § 706(1).

The defendants argue that if a plaintiff receives a positive BFD, they will not receive a WLD and will await final adjudication of the U-visa petition. (Filing No. 28 at p. 25). The defendants also claim that a BFD “provide[s] quicker access to the same potential benefits as the WLD process.” (Filing No. 28 at pp. 28-29). The Court does not agree. “[A] [WLD] is not the same as a [BFD] and th[at] plaintiffs who have the latter but still seek the former have standing to sue.” Mir, 4:23-cv-03046, Filing No. 37 at *13. The defendants fail to recognize the more obvious difference in protections a WLD as opposed to a BFD offers to a plaintiff: a WLD is mandated by regulation. “The waiting list is a regulatory process, meaning that to change it, USCIS would have to follow the proper rule-making procedure, including public notice and comment.” Id. at *12 (citations omitted). On the contrary, the BFD process was adopted by the USCIS to “ease the waitlist backlog with congressional blessing; USCIS could, in theory, rescind the policy immediately without notice or recourse to U-Visa applicants.” Id. (citing Barrios, 25 F.4th at 441 (“A future administration could rescind the BFD process just as easily as this administration established it; the program could be retracted before any of Plaintiffs’ applications are adjudicated by USCIS.”)). There are additional fundamental differences between a BFD and a WLD in the opportunities for advanced parole or “permission to enter the United States.” Id. at *11-12 (citations omitted).

The USCIS is required by regulation, regardless of whether the agency issues a BFD, to place eligible petitioners on the waiting list. 8 C.F.R. § 214.14(d)(2). Even if a plaintiff receives a BFD, the USCIS is nevertheless required to issue WLDs for eligible petitioners. See Mir, 4:23-cv-03046-JFB-MDN, Filing No. 37 at *13 (stating that plaintiffs who have been granted BFDs may still sue to seek WLDs). Thus, because the plaintiffs have yet to receive WLDs, which are required under regulation and provide different benefits than BFDs, the plaintiffs have suffered an actual injury. Further, the Court has jurisdiction to review allegations of unreasonably delayed WLDs for eligible petitioners. Therefore, the Court will deny the defendants’ motion to dismiss the plaintiffs’ WLD claims.

D. The EAD Claims

The defendants allege EADs are discretionary and therefore review of these claims by the Court is barred by 8 U.S.C. § 1252(a)(2)(B)(ii). On this point, the Court agrees. The language of 8 U.S.C. § 1184(p)(6) states that “[t]he Secretary may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U) of this title.” (emphasis added). The use of the word “may” indicates 8 U.S.C. § 1184(p)(6) is discretionary. See, e.g., Joshi v. Garland, 728 F. Supp. 3d 1028, 1033 (D. Neb. 2024) (concluding the discretionary language preceding work authorization in. § 1184(p)(6) indicates that the USCIS is not required to grant work authorization, barring judicial review of EADs under 8 U.S.C. § 1252(a)(2)(B)(ii) (citing Thigulla v. Jaddou, 94 F.4th 770, 775 (8th Cir. 2024)). The jurisdiction-stripping provision of the INA, 8 U.S.C. § 1252(a)(2)(B)(ii), provides that “no court shall have jurisdiction to review ․ any [ ] decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security․” Here the plaintiffs have asked the Court to “to timely grant Plaintiffs’ deferred action” and “to timely adjudicate Plaintiffs’ applications for employment authorization.” (Filing No. 27 at p. 28). But because the language of 8 U.S.C. § 1184(p)(6) is discretionary, the Court lacks subject matter jurisdiction to review EAD claims against the USCIS. Therefore, the Court will grant the defendants’ motion to dismiss the plaintiffs’ claims seeking deferred action and adjudication of their applications for EADs.

E. Joinder of Plaintiffs

Finally, the defendants ask that if the Court does not entirely dismiss the plaintiffs’ claims, the Court dismiss and sever all but the lead plaintiff's claims because they are improperly joined under Rule 20 of the Federal Rules of Civil Procedure. Plaintiffs may join in one action if (1) their claims arise out of the same transaction or occurrence, and (2) they share a common question of law or fact. See Fed. R. Civ. P. 20(a); Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974). “Transaction” is flexible in its meaning. Mosley, 497 F.2d at 1333. “It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.” Id. at 1334 (concluding that multiple claims based on a discriminatorily designed company-wide policy “arise[ ] out of the same series of transactions or occurrences.”). “Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966).

The defendants assert the plaintiffs were improperly joined because “their claims do not arise from the same transaction, occurrence, or series of transactions of occurrences.” (Filing No. 28 at p. 32). The defendants only argue that the plaintiffs’ claims of a delay in the processing of their immigration applications by the USCIS fails to satisfy a showing of “a common transaction or occurrence.” (Filing No. 28 at p. 32). The Court disagrees. In the present case, each plaintiff has filed an application for U-status with the USCIS and each application is pending at USCIS's Nebraska Service Center. (Filing No. 27 at pp. 2-5). Each plaintiff has provided the necessary materials required for a BFD and a WLD. (Filing No. 27 at p. 13). All plaintiffs claim they are at risk of removal from the United States due to the alleged delays by the USCIS. (Filing No. 27 at pp. 17-18). The plaintiffs seek the same relief from the Court in the form of interim U status benefits. (Filing No. 27 at p. 2). The plaintiffs’ claims fall within the flexible meaning of the word “transaction,” and the defendants have failed to demonstrate a genuine burden or unfairness that would result from the joinder. See, e.g., Roth v. Austin, 619 F.Supp.3d 928, 966-67 (D. Neb. 2022) (determining 36 plaintiffs’ claims alleging the injury of religious discrimination resulting from the COVID-19 vaccination mandate was “certainly” encompassed within the “flexible meaning of ‘transaction’ applicable under Rule 20(a)(1).”). As such, the plaintiffs are properly joined in this action.

Upon consideration,

IT IS ORDERED:

1. The defendant's Motion to Dismiss (Filing No. 28) is granted, in part, and in part denied as set forth above.

2. The defendants shall file an answer to the plaintiffs’ remaining claims on or before May 29, 2025.

FOOTNOTES

1.   Per Federal Rule of Civil Procedure 25, Kika Scott is automatically substituted as Director of USCIS.

2.   Per Federal Rule of Civil Procedure 25, Kristi Noem is automatically substituted as United States Secretary of Homeland Security.

3.   Available at .

Michael D. Nelson, United States Magistrate Judge