As many of you know with the introduction of New I-539 Form with biometrics for H4 Holders, the processing time for H4 visa extensions and Change of Status applications has drastically increased, even if they are filed with H1B in premium processing. While, there is no legal requirement that USCIS has to process H4 and H4 EAD in premium processing, as a courtesy, USCIS has been doing so for years. But, with the introduction of Biometrics, they are no longer following that courtesy expedited processing for H4 and H4 EAD. To get an idea of the delays, you can read comments in H4 Biometrics User Experiences with Delays . So far, we had only one H4 Approval with Biometrics reported by user, since the biometrics process. In this context, few H4 EAD holders have filed a court case last week with support of Reddy & Neuman Law firm on the H4 EAD delays. It is a 20 page document and we will look at the court case details and highlight summary of the key argument points that they have raised in the lawsuit, list out next steps and current status.
Introduction Section in the H4 EAD Delays Court Case Document – Case Build up
- The first few pages cover the concepts of H1B, H4, Green Card process and how American Competitiveness in the 21st Century Act (AC21) was enacted and provides provisions for extensions beyond 6 years, including history of H4 EAD rule and how certain H4 Spouses can apply for H4 EAD to work in US.
- They build up the case saying that H1Bs can work with Pending Receipt, but there is no provision to have H4 holders to work with pending H4 EAD receipt and need physical card to continue to work and there is need for H4 EAD applications to be adjudicated in timely and expedited fashion. They talk about how H4 and H4 EADs were filed concurrently with H1Bs as premium processing and how USCIS processed H4 and H4 EADs in expedited fashion in the past, though not required.
Right to go against USCIS in Court for H4 and H4 EAD Processing Delays :
To go in court against USCIS, which is a federal agency, for the processing delays case, they state the provision of Administrative Procedure Act, 5 U.S.C 702. It basically states that if an agency (in this context USCIS) impacts a person adversely due to their actions ( in this case delays in H4, H4 EAD processing), then the individual impacted is entitled for judicial review ( basically go to court and seek justice). Check Official 702 Right to Review at Govinfo.Gov. In this court case, the parties challenge USCIS unlawful delay in processing of H4 and H4 EADs and are seeking the court to order USCIS to comply with law and provide timely adjudication of the petitions filed by the parties in this case.
Parties in the Case, Their Situations with Jobs, Insurance, Kids, History of Filings.
The case document describes the list all the four plaintiffs ( persons bringing the case against another – in this case USCIS), who are H4 and H4 EAD holders. It also describes their hardships, situations with the jobs, where some of them are placed on unpaid leave, losing medical insurance, children’s situations We are not disclosing anyone’s specific names or details for privacy sake. Also, it talks about when the H4 and H4 EADs were filed for all the people involved in the case, and how each of their applications are still pending.
Key Argument Points in the H4 and H4 EAD Processing Delays Court Case :
Below are various key argument points that are put up by the impacted individuals in the H4 processing delays court case against USCIS.
- Processing Simplicity, Time duration to process for H4, H4 EAD Applications : One of the key points they raise is H4 and H4 EAD adjudication process is extremely simple and routine one without needing much attention to details.
- They say that USCIS stated in past that it took them 0.4 hours or 24 minutes to process a I-539 form, which is used for H4 holders extensions. Also, the EAD application for H4 takes about 0.2 hours or 12 minutes to process.
- The argument is, when all of these applications are adjudicated together, the facts can be easily checked and it should be minimal effort and historically they were processed together.
- We have validated the average processing time data on Federal Register on the processing times and it is as in below screenshot. Check Federal Register
- Biometrics Process for H4 : They talk about the I-539 biometric process for H4 that was introduced by USCIS, which was not required by regulation or statue and it was purely USCIS creation.
- Initial USCIS Guidance vs. Change in Stance : They raise the point that guidance was given by USCIS in teleconference before introducing biometrics process, where USCIS mentioned that they will process H4 and H4 EAD in expedited manner. They say that USCIS seems to have changed this policy of expedited processing after March 22.
- H4 and H4 EAD Processing Delays, Hardships – Jobs, Insurance, etc. : They raise key point that H4 EAD cannot be approved without H4 approval and the current processing time for H4 application is about 8.5 months. Also, the H4 EAD processing time is about 5 months.
- With USCIS actions of delay in processing, the argument is that H4 Holders in the case and many others like them will potentially lose jobs, insurance, driving license and it will cause stress on their personal finances and impact businesses that employ H4 holders.
- Congress Guidance for Processing : As per US Congress expectations, both H4 and H4 EAD applications have to be adjudicated within 30 days, but USCIS is delaying the processing. We have validated the Congress guidance that USCIS should complete the processing within 30 days. See below screenshot, check Govinfo.gov Official Document
- Administrative Procedure Act : Federal agencies such as USCIS are required to comply with the Administrative Procedure Act (APA) when they craft regulations, enforce decisions or legislative rules. The argument they put up is based on 5 U.S.C 553, which states that USCIS did not really go through the proper process like 9 Steps US Rule Making, for making some of these decisions for delays. Check Govinfo.gov 5 USC 553
- Courts Authority to Invalidate agency actions : The argument says that courts have authority to invalidate USCIS actions like the delays in processing in this case. They give reference to the 5 USC 706 for the same.
- Immigration Nationality Act : They explain the details of H1B and general immigrant visas and then say that H4 and H4 EAD are non-immigrant benefits as defined in INA.
- Violation of Administrative Procedure Act for Delays : They says that the parties in case have been waiting for 78 days and it is unreasonable delay. As per the Administrative procedure act, the applications have to get a decision within a reasonable amount of time. As per congress policy, all non-immigrant visa applications should be decided within 30 days.
- They argue based on the also a key point of application Fee. USCIS collects fee for processing of H4 and H4 EAD, based on time of processing. USCIS cannot say that the delays are due to the lack of resources as it is a fee funded process and already factored in and it is their duty.
- They argue that, USCIS current delays are not due to lack of resources as they have always processed within 15 days for premium processing cases in the past and not much has changed now.
- They argue that USCIS by any means should not need more than 30 days to process H4 and H4 EAD petitions, the reason is that these are not fact intensive petitions and USCIS review need not be that extensive. They say that USCIS is intentionally delaying the processing of H4 and H4 EAD applications by changing their adjudication policy in a random fashion without proper guidance.
Expected Decision from the Parties in Case against USCIS
The parties in the case are asking court to issue an order to make the agency, which is USCIS, to make a decision on the I-539 forms for H4 Extensions and I-765 forms for the H4 EAD and declare that the delays in H4 and H4 EAD processing is unreasonable.
Next Steps in the Court Case of H4, H4 EAD Delays in Processing ?
Once the complaint is filed, the case is assigned to a judge, summons are issued to the parties, in this case USCIS. In general, the defendant, which is USCIS, has 60 days to respond to the complaint. There could be couple of potential outcomes
- USCIS could just adjudicate the H4 and H4 EAD applications that are filed by the parties seeking justice for delays. This is less hassle option for USCIS as they do not have to deal with court and further litigation. The issue with this outcome is that only the parties involved in the case will only get benefit and only their applications will be adjudicated.
- USCIS Could decide to fight the case and then they need to submit their briefs, and it will be dragged further. This could take much longer like H4 EAD Rule Removal Lawsuit , but could benefit everyone waiting for H4 and H4 EAD decisions. But, this is a very lengthy process and we do not know how it would work.
What is the current status of the H4 EAD Processing Delays Lawsuit ?
As of now, the documents are filed, summons issued and other activities like notice to appear for the attorney. See below screenshot for the status update.
We need to wait and see how this will pan out. Maybe other attorneys may pursue other similar lawsuits for the delays as well. So far, we have seen some users share that the current law firm involved in this lawsuit is charging $1,800 USD per person to file lawsuit and split court costs of up to $600 USD…
What do you all think about the H4 and H4 EAD processing Delays lawsuit ?