Wednesday, January 18th, 2017

CA9 on EB-3 Visa Recapture: Li v. Kerry

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"Plaintiffs allege that Defendants misallocated immigrant visas to eligible applicants in the employment-based third preference category (EB-3) during the 2008 and 2009 fiscal years.  Plaintiffs request that visa numbers be made available to them and other members of their class so that they can obtain visas or adjustment of status before the end of the fiscal year.  We hold that the district court properly dismissed the complaint because there is no live case or controversy about the establishment of visa cut-off dates, and the allocation of visa numbers, in the 2008 and 2009 fiscal years.  We also hold that the district court did not err in dismissing Plaintiffs’ claims for prospective relief because they did not allege that Defendants failed to take discrete actions they were legally required to take.  Accordingly, we affirm the decision of the district court."

But see Reinhardt, concurring: "Plaintiffs have identified