Special Immigrant Religious Worker Regs Ultra Vires: Passionists & Ocampo v. Johnson

"The precise question presented in this case is whether the statute that Congress enacted, which defines the class of immigrants who are eligible for a special immigrant religious worker visa, excludes individuals seeking to qualify based on work performed when they were not authorized to work in the United States. Because the statute’s language does not contain such an exclusion, and because Congress plainly contemplated that some immigrants would be admitted to lawful permanent residence despite prior violations of U.S. immigration law, the Court concludes that the INA is not ambiguous as to the precise question at issue. Since 8 C.F.R. § 204.5(m)(4) and 8 C.F.R. § 204.5(m)(11) contradict Congress’s intent in this regard, they are ultra vires to the INA. ... The Court finds that 8 C.F.R. § 204.5(m)(4) and 8 C.F.R. § 204.5(m)(11) are ultra vires and that USCIS’s decision denying the Passionists’ I-360 petition on the basis of those regulations was contrary to law. The Court therefore orders USCIS to rescind its denial and issue a new decision granting the petition." - CONGREGATION OF THE PASSION, HOLY CROSS PROVINCE and REV. ALFREDO OCAMPO v. JOHNSON, Feb. 6, 2015.  [Hats off to Scott D. Pollock!]