Section 1252(a)(2)(B)(ii) and employment-based delay claims: the jurisdiction fight in 2026

Before a court asks whether a delay is unreasonable, it now often asks whether it may ask at all. The answer in 2026 depends less on the length of the delay than on the words Congress used for the benefit in question.

The provision

8 U.S.C. § 1252(a)(2)(B)(ii) removes jurisdiction to review any decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified to be in their discretion. The government argues that the pace and order of adjudication are such actions. In Bouarfa v. Mayorkas the Supreme Court applied the provision to revocation of an approved petition, a holding discussed in revoked I-140s after Bouarfa.

How it plays out by form

I-485. Adjustment under section 245 is granted in the Secretary's discretion. A May 2026 decision in the District of Kansas dismissed an I-485 pace claim, observing that every circuit to consider the question had held such claims barred. Employers should assume this objection will be raised in any adjustment case, which also bears on the strategy in the PM-602-0199 memo.

EB-5 regional center petitions. In June 2026 the District of Columbia found jurisdiction, holding that a single "may" in the processing provision was not the clear and convincing evidence needed to displace the presumption of review, and distinguishing the multiple words of discretion in Bouarfa. The plaintiff still lost on the merits, as described in the 120-day goal in court.

I-140. The petition statute, 8 U.S.C. § 1154(b), directs approval once the facts are found true and the beneficiary is eligible. That language is far less discretionary than section 245, which is why employer-filed petitions are in a materially stronger jurisdictional position than adjustment applications.

Jurisdiction is not the same as a cause of action

The 2026 EB-5 opinion also stressed that arguments based on Norton v. Southern Utah Wilderness Alliance, which requires a discrete action the agency is required to take, go to whether the plaintiff has a cause of action, not to jurisdiction. Mandamus.com analyses that rule on its Norton v. SUWA page and the jurisdiction bar on INA § 242.

What this means for employers

• Lead with the petition the company filed, not the employee's adjustment, wherever the facts allow.
• Plead both APA and mandamus theories, as APA delay and mandamus recommends.
• Expect the merits to turn on the TRAC factors even when jurisdiction is upheld, as set out in the TRAC factors for employers.
• Where the claim depends on an adjustment application alone, weigh the guidance in when not to litigate before filing.

Questions

Do courts still hear I-485 delay claims?

Some do, but the jurisdictional objection is strong and appellate courts that have considered it have accepted it. Advice on the specific circuit is essential.

Is an I-140 delay claim subject to the same bar?

The I-140 statute directs approval when eligibility is shown, which makes the discretionary bar much harder to apply than for adjustment of status.

Did Bouarfa decide delay cases?

No. It concerned revocation of an approved petition. Lower courts have since applied its reasoning, and distinguished it, in delay cases.

General information, not legal advice. Rules and processing practice change; verify against the agency's own published figures and take advice on your own facts.