Recently, our firm has become aware that H-4 applications, even when filed concurrently with a premium processing H-1B petition, are not being adjudicated in a timely manner. As you may be aware. Starting in March 2019, USCIS introduced a biometrics requirement to I-539 applications. In a call leading up to the introduction of the new requirement, USCIS stated that on average biometrics would take seventeen days to complete. They added that while biometrics could impact their ability to continue providing the courtesy of adjudicating H-4 cases filed with premium H-1B cases, they would still try to expedite such cases. Recent trends however show that is not the case and that USCIS no longer intends to provide such courtesy. This will likely cause H-4 cases to be adjudicated in normal USCIS processing times.
On May 13, 2019, a bipartisan group of thirty-six United States Senators sent a letter to USCIS expressing their concerns over USCIS’ long processing delays. The Senators note that the delays impact all cases including employment-based, family-based, and humanitarian cases. Specifically they note that “when an employee experiences an unexpected processing delay in applying for and renewing employment authorization it can destabilize a business and leave mission-critical roles unfilled.” The high level of delays in adjudication is not new to the current administration, and causes employers and employees to feel like there are not many options to get their application or petition adjudicated in a timely manner.
Current USCIS processing times show that it can take USCIS up to twelve and a half months to adjudicate an I-539 application. This delay can significantly impact H-4 dependent spouses that have also applied to renew employment authorization or to seek employment authorization via their H-4EAD. Thankfully, through the federal courts, those seeking immigrant benefits, like an H-4 and H-4 EAD, can find success by filing an Administrative Procedures Act (APA) delay case against USCIS to seek to compel the service to act.
How long should it take to adjudicate an H-4?
Unfortunately, USCIS has led many people to believe that their posted processing times are what people have to live with. However, USCIS processing times are mostly irrelevant when it comes to how long USCIS should take to adjudicate cases. 8 U.S.C. § 1571 states:
It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section 1184(c) of this title should be processed not later than 30 days after the filing of the petition.
This means that Congress has specifically stated that it is their intent that no immigration benefit should take longer to adjudicate than 180 days and most nonimmigrant visas, which includes H-1B, L-1, F-1, and the dependents like H-4 and L-2, should take only thirty days to adjudicate. Keep in mind, this timeline is not predicated on filing a case in premium processing, this is what Congress intended the “standard” timeline for USCIS adjudications to be.
What actions can you take to prepare for a potential H-4 delay case?
Applicants can “present their case” for a timely approval to USCIS at the time of filing. They should consider including a cover letter explaining to USCIS why a timely adjudication is important and what burdens may be faced by USCIS’ delay. This creates an important aspect of the case where you have already told USCIS what is “convenient and necessary” application. Explaining at the outset the financial burdens, loss of job opportunities, being terminated from your job if there is a delay, or the lack of ability to renew a license will put USCIS on notice of how their unreasonable delays can become costly to petitioning companies and those seeking immigrant benefits.
Your H-4 has been pending for more than thirty days. What can be done about this?
When an H-4 Application processing go beyond what Congress has intended, Applicants can file an APA delay case in federal court to compel USCIS to act on the case. Please note that through a delay case, you cannot force USCIS to approve your case, but you can get a court order requiring USCIS to adjudicate the case.
The APA requires USCIS to carry out its duties to complete the adjudication within a reasonable time. The Administrative Procedures Act (APA) requires USCIS to carry out its duties to complete the adjudication within a reasonable time given the “convenience and necessity of the parties.” See 5 U.S.C. §555(b). If the agency fails to render a decision within a reasonable time, a federal court has authority to compel the agency to do so under 5 U.S.C. § 706(1) which confers power on the U.S. District Courts to compel agencies to perform “action unlawfully withheld or unreasonably delayed.”
When filing a delay action, the litigation will focus on the court making an assessment of whether the agency action has been “unreasonably delayed” under 5 U.S.C. § 706(1). With this, the courts look to six TRAC factors:
(1) the agency’s time to decision must satisfy a “rule of reason”;
(2) whether a congressional “timetable” or “other indication” informs this rule of reason;
(3) delays affecting human health and welfare are “less tolerable” than delays that might be reasonable for economic regulations;
(4) the effect of relief on competing or higher agency priorities;
(5) “the nature and extent of the interests prejudiced by the delay”; and
(6) agency delay may be deemed unreasonable even in the absence of “any impropriety lurking behind agency lassitude.”
See generally Telecomms. Research & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 76 (D.C. Cir. 1984).
Based on the fact that USCIS typically cannot justify their delays, the fact that Congress has expressly given deadlines, and that there is usually a true need to timely process immigration benefits, courts have typically found that USCIS delays are unreasonable based on the TRAC factors. In the H-4 context, the Applicant’s focus will be on showing that the delay significantly impacts their ability to get a driver’s license, seek or maintain H-4 EAD employment, or impacts their ability to apply for or continue their education.
Once the clock has run out on USCIS you can file an APA delay case to compel them to act. Those seeking immigration benefits must be prepared to push back against USCIS’ “invisible wall” and sue USCIS for unreasonable delays in adjudication.
If you have any questions regarding whether a delay action against USCIS is the best path for you, please contact a qualified immigration attorney with knowledge on the legal subject.
By: Steven Brown & Kristina M. Hernandez
Steven Brown is an attorney in the firm’s H-1B Department and represents our business clients throughout the entire H-1B, H-4, and H-4 EAD process. Additionally, Steven works with clients with Department of Labor Compliance included assistance with wage and hours investigations. Steven prides himself in being able to provide his clients with creative solutions to complex immigration problems.
Kristina is an associate attorney at Reddy & Neumann. She was admitted to the State Bar of Texas in 2011. Her practice includes representing companies and individuals with employment-based visa petitions and applications.