On November 23, 2007, a class action lawsuit was filed in the U.S. District Court for the Western District of Washington challenging the USCIS’s policy of refusing to accept concurrent adjustment of status applications for special immigrant religious workers. The four named plaintiffs allege that USCIS policy violates the U.S. constitution’s Freedom of Religion, Equal Protection, and Due Process clauses, as well as the Religious Freedom Restoration Act and the Immigration and Nationality Act. The plaintiffs are seeking class certification for individuals and their derivative family members, who: (1) are in the United States, (2) are beneficiaries of a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant that has been filed or will be filed, and (3) would be eligible to apply for an adjustment of status, but for the refusal of the USCIS to accept concurrent filing of their Adjustment of Status Applications (I-485).
USCIS’s current policy is not to permit an individual to file an I-360 concurrently with an I-485, although concurrent filing is permitted for family-based and other employment-based permanent resident applications for which a visa number is available. The plaintiffs allege that under current USCIS practice, the agency’s adjudication of an applicant’s I-360 often exceeds the five-year limitation on a non-immigrant religious worker’s stay in the U.S., forcing the applicant and his or her family members to leave the United States before he or she can submit an I-485 to request an adjustment of status. Concurrent filing of the I-360 and the I-485 would allow religious workers and their families to reside and work in the United States beyond the five-year limitation.
Plaintiffs’ counsel has previously litigated an individual case in Seattle, Wash., that challenged the USCIS policy of refusing concurrent I-360/I-485 applications. See Hillcrest Baptist Church v. U.S., No. 06-1042Z, 2007 U.S. Dist. LEXIS 12782 (W.D. Wash. Feb. 23, 2007). The district court found that USCIS’s policy violated the Equal Protection and Due Process clauses, but the agency did not appeal the decision.