49 Plaintiffs File Class Action Lawsuit Challenging Extreme I-765 Work Permit Processing Delays for Green Card Applicants and E-2 Spouses

Welcome back to Visalawyerblog! In this blog post we share with you some recent news regarding a new class action lawsuit that has been filed by 49 plaintiffs against the Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS), seeking relief from the extreme processing delays currently taking place for I-765 applications for employment authorization (EADs) filed by individuals seeking adjustment of status (AOS) in the United States, and for I-765 applications filed by E-2 dependent spouses with USCIS.

Currently, USCIS reports that I-765 work permit applications based on a pending I-485 adjustment of status application are taking between 20 to 21.5 months to process at the California Service Center; while it is taking 9 to 9.5 months to process work permit applications at the National Benefits Center; and 9.5 to 10.5 months to process such applications at the Nebraska Service Center.

The new legal challenge against the government has been mounted by the American Immigration Lawyers Association (AILA), Wolfsdorf Rosenthal LLP, Joseph and Hall PC, Kuck Baxter Immigration LLC, and Siskind Susser PC.

The lawsuit seeks to hold the government accountable once and for all for the exorbitant processing times taking place for work permit applications to be adjudicated, especially those at the California Service Center. Under the law, applicants for adjustment of status are afforded the option of applying for temporary employment authorization while their green card applications are pending with USCIS, through what is supposed to be an easy procedure that involves filing a simple I-765 application for employment authorization. In normal circumstances, such employment authorization applications took on average 7 to 9 months to be adjudicated. Since the onset of the pandemic however USCIS has not been able to adjudicate these applications within reasonable timeframes.

Processing times have gotten worse and worse to the point that applicants are receiving their green card interview appointments before even coming close to receiving an approved employment authorization document. This has resulted in applicants being unable to seek employment while waiting for their green card applications to process. This has caused great cause for concern for individuals who have a job offer lined up or who need to work to maintain their households. Further, the American economy is experiencing more and more labor shortages as they struggle to get individuals back to work. The situation at the USCIS level is making it even more difficult for American businesses to find qualified workers.

Sadly, E-2 dependent spouses have suffered the same fate as adjustment of status applicants. Such spouses are not legally authorized to work in the United States until they have received a valid employment authorization document (work permit) from USCIS, despite the principal investor receiving their E-2 visa approval. For many spouses who wish to contribute to the economy, their nightmares have become reality.

Currently, the only relief available to help move a work permit application through the USCIS pipeline is to submit an expedite request with the agency. However, many do not qualify to submit an expedite request because there are very narrow categories that make an individual eligible for approval including: severe financial loss, emergencies and urgent humanitarian reasons (for which most do not qualify), requests by nonprofit organizations if the request furthers an important cultural or social interest (again few quality for this because of the requirement that the request be made by an employer who is a designated nonprofit), if approving the expedite request is in the U.S. government’s interest, or in cases of a clear USCIS error. Often, expedite requests that do not have sufficient documentation or do not meet the requirements are denied.

Greg Siskind, founding partner of Siskind Susser PC points out that, “By its own analysis, USCIS takes only 12 minutes to adjudicate a work card application for which it charges $410. Taking 20 months to get to an application is not only unreasonable on its face, but perplexing when employers across the US are struggling to find enough workers to keep their businesses operating.

We are hopeful that this litigation will hold USCIS accountable and that the courts will find that waiting over 20 months to receive employment authorization is causing irreparable harm to green card applicants as well as E-2 spouses. We will be monitoring its status and reporting any further updates right here on our blog.

For more information about this litigation please click here.

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