Lawsuit claims USCIS trying to unfairly delay issuing H4 EAD

A lawsuit has been filed in the U.S. District Court of Columbia on behalf of four Indian-Americans alleging the U.S Citizenship and Immigration Services is trying to “unfairly delay the distribution of H-4 and H-4 EAD” in order to effectively suppress the program. 

The lawyers filing on behalf of Sriharsha Gudla of Texas, Sai Laxmi Kaullu of Pennsylvania, Sai Durgam Vasavi of Georgia and Sree Vindhya Nagandla of Illinois last week alleged that the case presents the court with the latest in a series of coordinated actions by the USCIS “to unlawfully delay” the adjudication of nonimmigrant visa benefits.

The lawsuit filed on June 6 comes at a time when the USCIS is believed to be in the final stages of revoking work authorization for spouses of H-1B skilled workers introduced under an Obama era rule.

In February, USCIS issued a proposal to remove “H-4 dependent spouses from the class of aliens eligible for employment authorization,” labeling it economically significant.

Stuart Anderson, executive director of National Foundation for American Policy, noted in an article in Forbes magazine last week that prior to March 2019, USCIS would typically adjudicate an H-4 dependent petition and the H-4 EAD application at the same time as the H-1B petition from the same family, particularly when premium processing would ensure adjudication within 15 days. This allowed for timely approval of work authorization or EAD for the H-4 spouse

According to the brief filed by attorneys Jonathan Wasden and Steven Brown as well as Steven A. Brown and Reddy & Neumann, P.C . on behalf of the four plaintiffs, sometime after March 22, 2019 “the 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.”

The lawsuit brought to the notice of the court that since gaining an initial H-4 employment authorization document, Sree Vindhya Nagandla has worked as a business analyst, but a renewal of her H-4 EAD is still pending.

“Agency delay will lead to Mrs. Nagandla losing her job, driver’s license, and her family would be unable to continue to make necessary mortgage payments of the house that is in her name if the Court does not compel the Agency to act,” according to the plaintiffs’ filing.

Another plaintiff, Sriharsha Gudla, risks losing a job that supplies health insurance coverage for the entire family, including two U.S. citizen children age 7 years and 11 months. Sriharsha has been placed on unpaid leave from work due to the USCIS delay in processing the H-4 EAD application. It said two other plaintiffs, Vasavi Sai Durgam and Sai Laxmi Kallu, risk losing their jobs because of the USCIS processing delays.

“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 lawsuit said.

The plaintiffs, spouses of H-1B applicants, are all applicants of H-4 and H-4 EAD applications filed with USCIS seeking nonimmigrant benefits and have each individually filed their H-4 and H-4 EAD applications.

“The plaintiffs are the spouses of an H-1B applicant that is the beneficiary of an approved employment based immigrant visa that is waiting in the continued backlog to acquire an immigrant visa,” the lawsuit said.

Noting that a rule is pending with the Office of Management and Budget to rescind a 2015 regulation that provides work authorization for the spouses of certain H-1B visa holders, Anderson wrote in Forbes in a sarcastic vein that while government agencies often get criticized for a lack of creative thinking, the USCIS has shown it can come up with “innovative ways to restrict high-skilled foreign nationals and their spouses”.

Anderson added that perhaps not being satisfied that the new rule would end work authorization quickly, the USCIS has developed a new method to prevent H-1B spouses from working in America.

The Trump administration has moved ahead with its proposed regulation, despite strong resistance from a group of U.S. lawmakers, including Senator Kamala Harris, and Silicon Valley companies who have argued that this is not only anti-women, but also prevents talented spouses of H-1B visa holders from working in the U.S.

“I think the litigation shows the frustration affected people have with USCIS policies and procedures. For the four plaintiffs and their families it would be helpful for them to prevail or for USCIS to settle the case,” Anderson told India Abroad.

“However, the bigger picture is that USCIS needs policies that take into account there are individuals who have families to support and who want to pursue both careers and the American Dream just like other people in the United States,” Anderson said.

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