Liu v. Pompeo

Background

Lin Liu applied for an immigrant visa as a derivative child of her father, who had applied for and received an employment-based fifth preference visa. Under the immigration laws, a derivative child generally must be unmarried and under 21. Liu’s father filed the relevant petition on September 18, 2014, when Liu was 18. The petition was approved on February 19, 2016, and the National Visa Center completed its review of Liu’s application materials on August 3, 2016.

Before Liu’s interview, her priority date was no longer current on the Department of State’s “Dates for Filing” chart. It became current on that chart again on January 22, 2018. Liu and her family were interviewed on May 30, 2019, and her priority date became current on the “Final Action Dates” chart in May 2019. Liu was then 23 years old. Her parents received visas, but Liu’s visa was denied because she was too old to qualify as a derivative child.

The Child Status Protection Act requires an applicant’s age to be reduced by the time the relevant petition was pending, if the applicant sought to acquire permanent-resident status within one year after a visa number became available. The parties agreed that Liu’s petition was pending for one year, five months, and one day. The dispute was whether the visa number became available when Liu’s priority date was current on the Dates for Filing chart or when it was current on the Final Action Dates chart.

Liu sued Daniel B. Smith, in his official capacity as Acting United States Secretary of State; Edward J. Ramotowski, in his official capacity as Deputy Assistant Secretary of State for Visa Services; the United States Department of State; and the United States. The action originally named former Secretary of State Michael Pompeo, and the court directed that Smith be substituted after Pompeo left office. Liu sought declaratory judgments concerning the interpretation of the Child Status Protection Act, the government’s use of the updated Visa Bulletin, and alleged retroactive application of the government’s policy.

Court’s analysis

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. The court accepted the complaint’s factual allegations as true for purposes of deciding the motion but did not accept legal conclusions as true.

Meaning of “visa number becomes available”

The court held that the government correctly treated a visa number as available when the applicant’s priority date became current on the Final Action Dates chart. A visa number could not be issued legally before that date because Congress had imposed limits on the number of employment-based visas available by country and category. The Dates for Filing chart allowed applicants to submit materials to the National Visa Center earlier, but it did not show when the government was legally authorized to issue the visa.

The court also relied on the purpose and history of the Child Status Protection Act. In the court’s view, the Act protects applicants from aging out because of administrative processing delays, but not from aging caused by waiting for a visa to become available under congressional limits. Because Liu’s visa number became available in May 2019, when she was 23, subtracting the petition’s pending time still left her over 21. The court therefore concluded that the government lawfully denied her derivative visa.

Administrative Procedure Act claim

The court rejected Liu’s argument that the government’s interpretation was a legislative rule requiring public notice and an opportunity for comment under the Administrative Procedure Act. The court characterized the interpretation as an interpretive rule because it explained the Department of State’s understanding of an existing statute rather than creating new legal obligations. The court noted that the policy was not published in the Code of Federal Regulations, did not expressly invoke legislative authority, and did not amend a prior legislative rule.

Retroactivity claim

The court also rejected Liu’s claim that the government applied the updated Visa Bulletin retroactively. Before the update, the Visa Bulletin contained one chart showing when priority dates were current for visa-number availability. After the update, it included both the Final Action Dates chart and the new Dates for Filing chart. The court concluded that the Final Action Dates chart continued to provide the same availability information used before the update, while the Dates for Filing chart supplied additional information about when applicants could submit materials. Because the substantive policy had not changed, the court found no new policy that could have been applied retroactively.

Disposition

The court granted the defendants’ motion to dismiss. It directed the Clerk to enter judgment dismissing the case with prejudice, close all pending motions, and close the case. The court stated that it did not need to address consular nonreviewability because it had determined that the defendants lawfully applied the Child Status Protection Act.