Mark A Ivener, A Law Corporation

Court Allows Concurrent Filings for Religious Workers

The U.S. District Court for the Western District of Washington recently ruled, in Ruiz-Diaz v. United States, that a U.S. Citizenship and Immigration Services (USCIS) regulation is “unreasonable and impermissible.” The challenged regulation, 8 CFR § 245.2(a)(2)(i)(B), permits some people to file a visa petition and an application for adjustment of status concurrently while requiring others, including religious workers, to wait until USCIS has approved the employer’s visa petition before filing their application for adjustment of status. The court found that “the Attorney General does not have discretion to choose who is eligible to apply for adjustment of status (that determination having been made by Congress), to interpret the same statutory provision in different ways depending on the classification of the applicant, or to waive a statutory requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs’ applications for adjustment of status based on the regulation barring religious workers from concurrent filing.”

The court did not evaluate the constitutionality of the regulation or its validity under the Religious Freedom Restoration Act.

Ruiz-Diaz potentially provides religious workers who have filed I-360 petitions with the ability to concurrently file adjustment of status applications. This would allow religious workers whose underlying R visa status is expiring (the R is valid for five years) to remain in the U.S. as adjustment of status applicants. At present, the I-360 approval process is lengthy, after which point the religious worker can file an adjustment application, due to the need to conduct a site investigation on each filing.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.