Lawsuit Alleges USCIS Has Acted In Bad Faith Against H-1B Spouses

Eufemia Didonato

A sign indicating the office is closed is posted following a two-week closure of a U.S. Citizenship … [+] and Immigration Services (USCIS) field office in Tukwila, Washington on March 3, 2020. (Photo by JASON REDMOND/AFP via Getty Images) AFP via Getty Images A new lawsuit alleges that U.S. Citizenship […]

A new lawsuit alleges that U.S. Citizenship and Immigration Services (USCIS) has acted in bad faith against the spouses of H-1B visa holders. The plaintiffs argue H-1B spouses cannot renew their H-4 employment authorization documents (EADs) because USCIS changed procedures to prevent the spouses from working in the United States. The plaintiffs say USCIS added an unnecessary biometrics requirement and adopted an erroneous interpretation of government regulations by prohibiting automatic extensions of H-4 work authorization. Plaintiffs’ attorneys assert Trump administration officials wanted to eliminate the regulation that allows the spouses of many H-1B visa holders to work but after failing to do so instead changed its policies to accomplish the same goal.

Processing Change: In 2015, a regulation granting work authorization to the spouses of H-1B visa holders with approved immigrant petitions (i.e., long-pending employment-based green cards) went into effect. H-1B spouses are usually in H-4 status. A rule is pending with the Office of Management and Budget to rescind the 2015 regulation but it has run into difficulties and has remained on the administration’s agenda for years without being published.

Before March 2019, USCIS would typically adjudicate an H-4 dependent petition and the H-4 EAD (employment authorization document) application at the same time as the H-1B petition from the same family. Premium processing of the H-1B petition would ensure adjudication within 15 days. The wait times for H-4 EADS have grown from 3 months up to 18 months in some locations after USCIS changed its policies, including requiring H-4 spouses to supply biometrics.

A previous lawsuit charged that USCIS altered its policies in a way that harmed the spouses of H-1B visa holders. “Sometime after March 22, 2019 . . . USCIS changed their internal policy of adjudicating H-4 and H-4 EAD applications concurrently with premium processing H-1B petitions and would now begin processing such cases in regular processing separate from the H-1B,” according to the brief.  Decoupling the adjudication of the H-1B and H-4 caused long delays, noted the plaintiffs’ attorney.

The Biometrics Requirement: “On March 30, 2019, the Agency’s Senior Policy Council determined it would begin collecting biometrics for H-4 extension applications filed on Form I-539,” according to the plaintiffs in Kolluri v. USCIS, filed in the Northern District of Texas (Dallas Division). “This change exploded Form I-539 processing times from a three-year average of 3.77 months, to its currently stated processing times of up to 18 months.”

Did requiring biometrics for H-4 EAD renewals serve a legitimate purpose? “Each of the H-4 plaintiffs have previously given biometrics in conjunction with an application for immigration benefits either at a consulate or in the United States,” note the plaintiffs.

“The agency’s insistence on obtaining new biometrics prior to adjudication of the H-4 extension is a pretext,” argue the plaintiffs. “The agency has waived this biometric requirement during the Covid-19 emergency for other immigration benefits, but not for the H-4 visa holders. The agency has also dispensed with other requirements, like interviews for green cards, to prevent harm caused by delays. The agency’s bad faith insistence on biometrics for H-4 visa holders is telling, 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 dependent spouses as a whole that would support imposing [additional burdens].’”

Plaintiffs’ attorney Brad Banias of Wasden Banias, LLC has pushed for expedited discovery. “We have credible, plausible evidence to suggest the need for expedited discovery, and it’s all about deposing and talking to the decision makers,” said Banias in an interview. “Why would officials choose to do what they did if they knew it was going to take so long and delay cases?”

The biometrics is not for security reasons, since USCIS has previously said those are not risk factors for H-4 spouses, notes Banias. USCIS claims it needs the biometrics for identity purposes, but these are renewals and identity was previously established, said Banias. He notes that, ironically, USCIS requires biometrics for H-4 spouse renewals but not for the principal H-1B visa holders, which he believes points to the contrived nature of the requirement.

Congress recently expanded premium processing to include employment authorization to allow a $1,500 extra fee to process a case in 15 calendar days. However, that would not solve the problem for H-4 spouses, particularly due to the biometrics requirement. First, the legislation states, “The required processing timeframe for each of the applications and petitions . . . shall not commence until the date that all prerequisites for adjudication are received by the Secretary of Homeland Security.” That means the biometrics would need to be collected first. Second, USCIS may take several weeks or longer to publish a regulation on premium processing.

No Automatic Extensions: One solution would be for USCIS to permit automatic extensions. “The regulations on their face allow for automatic extension of the H-4 EAD pending a renewal,” said Jon Wasden of Wasden Banias, LLC. “This would alleviate the entire backlog of H4 EAD claims nationwide.”

“We filed this case alleging two things: an erroneous interpretation of the regulation and bad faith,” said Wasden. “The bad faith claim is that USCIS created the H-4 biometrics requirement with the intent of slowing down and harming H-4 individuals obtaining employment authorization documents.” 

“Because of the agency’s position on automatic extension and its prolonged processing times, H-4 EADs are expiring, creating gaps in employment, disruption to the economy, and hardship for individuals and families,” according to the plaintiffs. “Most of the plaintiffs have lost, or will imminently lose employment authorization without this Court’s intervention.”

The Plaintiffs: “Many H-1B professionals are married to highly educated professionals who also have career ambitions,” notes plaintiffs’ memorandum for a preliminary injunction. An important reason for the 2015 regulation is that wait times for employment-based green cards are so long. Permitting H-1B spouses to work makes it easier for married couples waiting for permanent residence and helps prevent the United States from losing many talented individuals who have been contributing to the U.S. economy.

The memorandum details the plight of some of those caught in the web of USCIS policies. One plaintiff “filed her H-4 extension and EAD renewal concurrently with her spouse’s H-1B extension. . . . She and her spouse have a U.S. citizen child who is being treated for autism. The family’s monthly costs for this treatment is $2,500. However, with the loss of her income [because her EAD expired due to slow USCIS processing] they cannot afford the treatment and the early intervention which is so vital to successful development. The agency delay is threatening the future health of the plaintiff’s child.”

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

A medical doctor, who is a cardiology fellow at a medical center, filed her H-4 extension and EAD renewal concurrently with her husband on March 30, 2020. She was forced to stop treating patients in August after her employment authorization expired due to USCIS processing delays.

Another physician works as a clinical researcher searching for treatments for lung cancer for a major pharmaceutical company. “She is likely to lose employment authorization because of agency delays,” which will “negatively impact the clinical trials she is working on.”  

“This Court must order the agency’s prohibition on automatic extensions of H-4 work authorization is violative of its own regulations, and allow the plaintiffs to continue working without the agency penalizing them or their families,” argue the plaintiffs. “It must also enter an order finding the agency is unreasonably delaying the processing of H-4 extensions and renewals of employment authorization. The Court should find that the agency has intentionally acted in bad faith to create these delays, and enter an order directing the agency to adjudicate H-4 extension petitions and employment authorization renewals within 20 days.”

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

“The Trump administration is weaponizing delays against people who it doesn’t want to work in America,” said Brad Banias. “That’s wrong, and we think there is a good chance we can win this case and stop that from happening.”

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