Lawsuit Alleges USCIS Acted in Bad Faith Against H-1B’s Spouses

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A new lawsuit alleges that the United States Citizenship and Immigration Services (USCIS) acted in bad faith against the spouses of H-1B visa holders. The plaintiffs argue that H-1B spouses cannot renew their H-4 Work Authorization (EAD) documents because USCIS changed procedures to prevent spouses from working in the United States. The complainants say USCIS added an unnecessary biometric requirement and misinterpreted government regulations by prohibiting automatic extensions of the H-4 work permit. Lawyers for the plaintiffs say Trump administration officials wanted to eliminate regulations that allow spouses of many H-1B visa holders to work, but after failing to do so, they instead changed their policies to achieve the same. goal.

Modification of treatment: In 2015, a regulation granting work permit for spouses of H-1B visa holders with approved immigrant petitions (i.e. green cards based on long-standing employment) went into effect. H-1B spouses generally have H-4 status. A to reign is on hold with the Office of Management and Budget to repeal the 2015 regulation, but it has encountered difficulties and has remained on the administration’s agenda for years without being released.

Prior to March 2019, USCIS would generally rule on an H-4 dependency application and the H-4 EAD (Employment Authorization Document) application at the same time as the H-1B application from the same family. The premium processing of the H-1B query would ensure a decision within 15 days. Wait times for H-4 EADS have dropped from 3 months to 18 months in some places after USCIS changed its policies, including requiring H-4 spouses to provide biometrics.

A previous trial accused USCIS of changing its policies in a way that harmed spouses of H-1B visa holders. “Some time after March 22, 2019.. . USCIS has changed its internal policy of processing H-4 and H-4 EAD requests at the same time as H-1B premium processing requests and would now begin processing these cases as part of regular separate processing from the H-1B ”, according to the brief. The decoupling of the auction of the H-1B and the H-4 caused long delays, noted the plaintiffs lawyer.

The biometrics requirement: “On March 30, 2019, the Higher Policy Council of the Agency decided that it would start collecting biometric data for H-4 extension requests filed on Form I-539,” according to the complainants in Kolluri v. USCIS, filed in the North Texas District (Dallas Division). “This change blew Form I-539 processing times from a three-year average of 3.77 months, to its currently reported processing times of up to 18 months.”

Did the Biometrics Requirement for EAD H-4 Renewals Served a Legitimate Purpose? “Each of the H-4 complainants has already provided biometric data in conjunction with an application for immigration allowances either at a consulate or in the United States,” the complainants note.

“The agency’s insistence on obtaining New the biometrics prior to the adjudication of the H-4 extension is a pretext ”, argue the plaintiffs. “The agency waived this biometric requirement during the Covid-19 emergency for other immigration benefits, but not for H-4 visa holders. The agency also waived other requirements, such as green card interviews, to avoid damage from delays. The agency’s bad faith insistence on biometrics for H-4 visa holders is revealing, especially when “DHS is not aware of any risk factors – such as fraud, criminal activity. or threats to public safety or national security – associated with H-4 addiction. spouses as a whole who would support the taxation [additional burdens]. ‘”

Plaintiffs attorney Brad Banias of Wasden Banias, LLC lobbied for an expedited discovery. “We have credible and plausible evidence to suggest the need for expedited discovery, and this is about filing and talking to decision makers,” Banias said in an interview. “Why would officials choose to do what they did if they knew it would take so long and delay business? “

The biometrics are not for security reasons, since USCIS previously said they were not risk factors for H-4 spouses, Banias notes. USCIS claims it needs biometrics for identity purposes, but these are renewals and identity has already been established, Banias said. He notes that, ironically, USCIS requires biometric data for renewals for H-4 spouses, but not for primary H-1B visa holders, which he says underscores the artificial nature of the requirement.

Congress recently extended the treatment of bonuses to include employment authorization to allow an additional fee of $ 1,500 to process a case in 15 calendar days. However, this would not solve the problem for H-4 spouses, especially due to the biometrics requirement. First, the law states that “the processing time required for each of the requests and petitions. . . will not begin until the date on which all conditions precedent to the award are received by the Secretary of Homeland Security. This means that biometric data should first be collected. Second, USCIS can take several weeks or more to issue a premium processing policy.

No automatic extensions: One solution would be for USCIS to allow automatic extensions. “The regulations at first glance allow for automatic expansion of the H-4 EAD pending renewal,” said Jon Wasden of Wasden Banias, LLC. “This would reduce the entire backlog of H4 EAD claims nationwide.”

“We filed this case alleging two things: a misinterpretation of the regulations and bad faith,” Wasden said. “The bad faith claim is that USCIS created the H-4 biometrics requirement in an attempt to slow down and harm H-4 people who obtain work authorization documents.”

“Due to the agency’s stance on automatic extension and its extended processing times, EAD H-4s expire, creating job gaps, economic disruption and hardship for individuals and families.” , according to the complainants. “Most complainants have lost, or will imminently lose, their employment authorization without the intervention of this Court.

The complainants: “Many H-1B professionals are married to highly qualified professionals who also have professional ambitions,” notes the plaintiffs’ memorandum for a preliminary injunction. An important reason for the 2015 regulations is that the wait times for employment-related green cards are so long. Allowing H-1B spouses to work makes it easier for married couples awaiting permanent residence and helps prevent the United States from losing many of the talented people who have contributed to the American economy.

The memorandum details the fate of some of those caught up in the USCIS policy network. A complainant “filed her H-4 extension and her EAD renewal at the same time as her spouse’s H-1B extension. . . . She and her partner have a US citizen child who is being treated for autism. The family’s monthly fee for this treatment is $ 2,500. However, with the loss of his income [because her EAD expired due to slow USCIS processing] they cannot afford the treatment and early intervention that are so essential to successful development. The agency’s delay threatens the future health of the complainant’s child.

Another complainant and her spouse need the second income for expensive medical procedures not covered by insurance to help the couple have a child. “Despite the simultaneous filing of her applications with her husband’s H-1B extension, she lost her EAD and her driver’s license on August 22, 2020. Without her income, they cannot pay for the procedure and start a family. “

A doctor, who is a cardiology researcher at a medical center, filed her H-4 extension and her EAD renewal at the same time as her husband on March 30, 2020. She was forced to stop treating patients in August after l his work authorization expired due to USCIS. treatment delays.

Another doctor works as a clinical researcher researching lung cancer treatments for a large pharmaceutical company. “She is likely to lose her work permit due to delays from the agency,” which “will have a negative impact on the clinical trials she is working on.”

“This court must order the agency to ban automatic extensions of the H-4 work permit is against its own regulations and allow complainants to continue working without the agency penalizing them or their families,” support the complainants. “He must also enter an order finding that the agency is unreasonably delaying the processing of H-4 extensions and work authorization renewals.” The court is expected to find that the agency intentionally acted in bad faith to create these delays and issue an order directing the agency to adjudicate on H-4 extension requests and work authorization renewals within 20 days.

About 230 affected people have joined the lawsuit, but the number of spouses could number in the tens of thousands who are potentially affected by USCIS policies that delay the adjudication of the H-4 employment authorization.

“The Trump administration is militarizing backlogs against people it doesn’t want to work in America,” Banias said. “This is wrong, and we think there is a good chance that we can win this case and prevent it from happening.”

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