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Georgia resident sues USCIS for unlawful delay in H-4 EAD processing

BY VEENA RAO

Atlanta, GA, June 17, 2019: A lawsuit filed recently in the district court of Washington DC on behalf of a Cumming, GA resident and three other Indian women alleges the U.S Citizenship and Immigration Services (USCIS) has slowed down the processing of  H-4 and H-4 EAD adjudications, causing harm to spouses with work permits.

By decoupling adjudication of the H-1B and H-4, USCIS has unreasonably and unnecessarily slowed down the processing of H-4 and H-4 EADs, the lawsuit alleges.

According to the lawsuit, an H-4 EAD application cannot be approved without a valid H-4. As of May 31, 2019, USCIS processing times for an H-4 application are as long as eight and a half months. Processing times for the H-4 EAD are currently approximately 5 months.

“Defendant’s intentional and coordinated actions have placed Plaintiffs, and numerous other H-4 and H-4 EAD applicants like Plaintiffs in the position of losing jobs, insurance, driver’s licenses, and causing a significant strain on the applicant’s personal finances as well as the American businesses that employ them,” the plaintiff’s brief states.

The lawsuit says the USCIS is violating the Administrative Procedure Act by an “unlawful delay” and is seeking an order from the court for timely adjudication of the plaintiffs’ H-4 EAD applications.

“Both the H-4 extension and the H-4 EAD are nonimmigrant benefits that Congress expected the agency to complete within 30 days,” the lawsuit claims.

Cumming resident Vasavi Sai Durgam’s spouse is the beneficiary of an approved employment-based immigrant visa which was approved on July 11, 2013, the lawsuit states. Durgam’s application to extend H-4 status for her and her dependent child as well as her EAD application were filed concurrently with her spouse’s H-1B petition on April 10, 2019. This H-1B was filed in premium processing.

Her spouse’s H-1B was approved on April 10, 2019 and given a validity period through July 12, 2022. Durgam currently works as a software developer for an insurance company pursuant to her current H-4 EAD.  Her H-4 application and H-4 EAD application are still pending. 

“Agency delay will cause Plaintiff Durgam to be unable to accept a federal government job that has been offered to her, causing significant detriment to her career as well as a risk to her current job if the court does not compel the agency to act,” the lawsuit states.

The other three plaintiffs  are Sriharsha Gudla of Texas, Sai Laxmi Kaullu of Pennsylvania and Sree Vindhya Nagandla of Illinois.

A Forbes article written by Stuart Anderson, executive director of the National Foundation for American Policy, says it is possible USCIS may settle this case to avoid a judge scrutinizing and ruling against its policies that are preventing H-1B spouses from working.

“However, if that’s the case, then that would mean USCIS believes it is acceptable to treat people poorly so long as you can avoid public and judicial scrutiny. Most Americans would like government officials to aim for a higher standard,” Anderson says.

Last month, Representatives Anna G. Eshoo (CA-18) and Zoe Lofgren (CA-19) reintroduced the H-4 Employment Protection Act, legislation prohibiting the Trump Administration from revoking an Obama-era rule that extends work authorization to certain spouses of H-1B visa holders.

The Trump administration has announced plans to overturn current Department of Homeland Security (DHS) regulations that allow certain H-4 dependent spouses of H-1B visa holders to obtain employment authorization.

Many H-4 visa holders are highly skilled professionals, and DHS previously extended eligibility for employment authorization to them recognizing the economic burdens of families of many H-1B workers as they await green card approvals. Since the rule was implemented, over 100,000 workers, mainly women, have received employment authorization.

H-4 EADs are not likely to be revoked any time soon.

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