RYMER, Circuit Judge:
We must decide whether a regulation providing that alien beneficiaries of special immigrant religious worker visa petitions may file an application for adjustment of status only when their visa petition has been approved, 8 C.F.R. § 245.2(a)(2)(i)(B), is a permissible construction of 8 U.S.C. § 1255(a).
Gabriel Ruiz-Diaz represents a class of alien beneficiaries of special immigrant religious worker visa petitions, and organizations that employ religious workers, who maintain that the regulation is invalid under the statute. The district court agreed, granting summary judgment for Ruiz-Diaz. It reasoned that in § 1255(a), Congress clearly determined which aliens are eligible to apply for adjustment of status — those who are "inspected and admitted or paroled" — and the regulation prevents otherwise eligible aliens from submitting an application because they don't meet a requirement that is not in the statute: having an approved visa petition. The court also rejected the government's position that § 245.2(a)(2)(i)(B) simply regulates the application process under § 1255(a)(1), holding instead that the regulation unreasonably interprets "immediately available" as meaning two different things — that a visa number is available when the application is filed (in the case of family and higher preference employment-based beneficiaries), and that an alien must be eligible for immediate assignment of a visa number, i.e., the petition has already been approved (in the case of special immigrant employment-based beneficiaries). Accordingly, after granting summary judgment for Ruiz-Diaz and declaring the bar against concurrent filings in 8 C.F.R. § 245.2(a)(2)(i)(B) invalid, the court issued a permanent injunction requiring the government to accept as properly filed adjustment of status applications for religious workers filed concurrently with visa petitions. The government appealed.
Applying Chevron's two-step analysis,
Up to 5000 special immigrant visas may be granted to religious workers each year.
A religious organization employer sets the process of obtaining a special immigrant religious worker visa in motion by filing a Form I-360 Petition for Special Immigrant.
Apart from filing the petition, an alien seeking to adjust status to that of a lawful permanent resident must apply for adjustment of status. This would be on a Form I-485 Application to Register Permanent Residence or Adjust Status. This case involves adjustment of status.
The governing statute is § 1255(a), which allows an alien who has been admitted
8 U.S.C. § 1255(a). An alien is "eligible to receive an immigrant visa" if he is eligible to be classified for a family or employment-based visa. See 8 U.S.C. § 1153. An alien is "admissible to the United States for permanent residence" if he is not inadmissible under the grounds listed in § 1182(a). And an immigrant visa is "immediately available" if the priority date for the preference category is current according to the United States Department of State Visa Bulletin issued for the month in which the application for adjustment of status is filed. 8 C.F.R. §§ 245.1(g)(1), 245.2(a)(2)(i)(B). The priority date is fixed on the date when an approved visa petition is filed. 8 C.F.R. § 245.1(g)(2).
8 C.F.R. § 245.2(a)(2)(i)(B) was promulgated on July 31, 2002 as an interim rule to improve efficiency and customer service for certain alien workers filing Form I-140 petitions. Prior to its promulgation, all alien workers were required to obtain approval of the underlying visa petition before applying for adjustment of status.
8 C.F.R. § 245.2(a)(2)(i)(B) (footnotes added).
We review whether the regulation conflicts with the statute under the two-part test set out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under step one, we ask whether Congress has spoken to the question. If Congress has done so unambiguously, we accept its statement as controlling. But if Congress has not spoken to the precise issue because the statute is either silent or ambiguous, we go to step two and consider whether the agency's interpretation is a reasonable, permissible construction of the statute. If it is, we defer to the agency. Escobar v. Holder, 567 F.3d 466, 472 (9th Cir.2009); Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir.2005). When, as here, Congress has expressly conferred authority on the agency to implement a statute by regulation, the regulations have "controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. This is particularly true in the immigration context "for executive officials `exercise especially sensitive political functions that implicate questions of foreign relations.'" Negusie v. Holder, ___ U.S. ___, 129 S.Ct. 1159, 1164, 173 L.Ed.2d 20 (2009) (quoting INS v. Abudu, 485 U.S. 94, 100, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)).
Ruiz-Diaz submits that Congress intended for § 1255(a) to provide the full eligibility criteria for filing an application for adjustment of status, and that the regulation contravenes this intent by redefining who is eligible to apply. As he points out, we held in Bona v. Gonzales, 425 F.3d 663 (9th Cir.2005), that § 1255(a) unambiguously defines who is eligible — those who have been "admitted or paroled" into the country — and that a regulation which deemed a paroled alien an "arriving alien" regardless of his parole status was invalid. Id. at 667-70. However, a similar question is not presented here. Unlike the regulation at issue in Bona, § 245.2(a)(2)(i)(B) does not affect who is eligible to apply. Any alien "admitted or paroled" into the United States may apply for adjustment if he is eligible to be classified for a visa and a visa number is current when his application is filed. Thus, the statutory criteria for eligibility are intact.
For this reason, we disagree with the district court that the statute clearly speaks to the precise issue presented. Rather, we conclude at Chevron step one that the statute is silent with respect to when visa petitions and applications for adjustment of status may be accepted and processed in relation to each other. It
Given congressional silence on the issue of timing, we must decide at Chevron step two whether the agency's approach is a permissible construction of the statute. In this connection, we note that § 1255(a) confers discretion on the Attorney General to adjust status "under such regulations he may prescribe." Thus, Congress expressly manifested its intent that the agency regulate the process by which status will be adjusted except for three statutory prerequisites: (1) the alien must make an application; (2) the alien must be eligible to receive an immigrant visa and be admissible; and (3) an immigrant visa must be immediately available to the alien at the time he applies. As the Court stated in Chevron, "[w]e have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer. ..." 467 U.S. at 844, 104 S.Ct. 2778. Thus, we must determine not how we would interpret the statute, but whether the agency's interpretation is reasonable.
Ruiz-Diaz and the district court posit that it is unreasonable for the agency to interpret the same words in the third condition — that an immigrant visa be "immediately available" — differently depending upon the class of worker. In their view, the agency impermissibly interpreted this phrase on the one hand to mean that higher preference workers who do not have an approved visa petition may file for adjustment of status, and on the other hand to mean that religious workers who do not have an approved visa petition may not file for adjustment of status. However, with regard to question before us — whether the agency impermissibly requires alien beneficiaries of special immigrant visa petitions to apply for adjustment of status only after their visa petition is approved — we conclude that the agency's interpretation of the statute is reasonable. Section 1255(a)(3) does not prohibit consecutive filing. Beyond this, the agency has already construed the term "immediately available" in 8 C.F.R. § 245.1(g)(1), which defines the term to mean that the immigrant's priority date for a visa number is current. An application to adjust status may be accepted for filing and processing if the applicant's place on the waiting list is earlier than the date shown in the State Department's Visa Bulletin. Id. For applicants with previously approved visa petitions, their place in the queue is apparent at the time of filing. It is not manifestly contrary to the statute for the agency to accept the applications of alien beneficiaries of special immigrant religious worker visas for filing and processing only when they have a visa in hand, thus making it obvious that the visa number is "immediately available."
Ruiz-Diaz's real concern is that USCIS does not process the petition for a special immigrant religious worker visa soon enough for it to do many of them any good. It takes time for visa petitions to work their way through the system; the government estimates five-six months on average, though in individuals cases it may take longer. From Ruiz-Diaz's perspective the problem is compounded for those religious workers who are present in the country on R-1 non-immigrant visas, because they do not get the benefit of a stay that comes with filing an application for adjustment of status, 8 U.S.C. § 1255(k), and must depart the country when their R-1 visas expire. It is this conundrum that led Ruiz-Diaz to challenge the regulation.
He claims that religious workers such as he who are eligible to apply for adjustment of status will accrue more than 180 days of
The parties make additional arguments in support of their positions that we decline to reach. For example, the government suggests that its regulation is justified to reduce fraud in the Special Immigrant Religious Worker Visa Program, and Ruiz-Diaz contends that the regulation offends the Equal Protection Clause and the Religious Freedom Restoration Act. The district court did not consider these claims because its disposition effectively mooted them. Our disposition, however, revives them. We express no opinion on their merits, which we leave to the district court in the first instance.
Having decided that the regulation withstands Chevron review, we reverse the judgment and vacate the injunction. We remand for such other proceedings as the district court deems appropriate.
REVERSED AND REMANDED.
