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H-4/H-4 EAD

Update on EAD Delay Lawsuit Filed by Reddy & Neumann and Litigation Partners

In March of this year, Reddy & Neumann Senior Associate Steven Brown together with Jonathan Wasden from Wasden Banias and Jesse Bless from the American Immigration Lawyers Association filed a class action case in Seattle on behalf of all H-4 and L-2 EAD applicants. Approximately 178 spouses of H-1B specialty workers and executives transferred to the U.S. filed suit against the U.S. Citizenship and Immigration Services (“USCIS”) claiming that USCIS unreasonably delayed the review of their visa extensions and work authorizations.

As a response to the Plaintiffs’ motion for preliminary injunction back in May, USCIS submitted a declaration acknowledging that there were approximately 123,000 backlogged I-539 requests for H-4 and L-2 spouses and approximately 57,500 backlogged I-765 requests for H-4 and L-2 spouses. However, at that time, USCIS provided no reasoning as to the delay other than the on-going pandemic. Additionally, in May, as part of the government’s opposition to the plaintiffs’ preliminary injunction motion, the government announced they would be suspending the biometrics requirement for H-4, L-2, and certain E nonimmigrants. 

In the government’s cross-motion for summary judgment submitted last week, they submitted an updated declaration providing an update on the backlog. USCIS notes that the current number of backlogged I-539s for H-4 and L-2 spouses is approximately 115,580, and the number of backlogged I-765s for H-4 and L-2 spouses is approximately 45,605. USCIS notes that they have adjudicated approximately 29,365 applications for H-4 and L-2 spouses in the last sixty days.

As of June 28 2021, both parties have filed motion for summary judgment of various grounds. A summary of the plaintiffs’ arguments is as follows:

  • That USCIS has not complied with the explicit statutory and regulatory adjudication timelines and objectives
  • That the Court should rule in favor of L-2 Plaintiffs since the language and purpose of the Immigration and Nationality Act sets forth a clear 30 day adjudication timeline for L-2 visas and EADs
  • That the plain language and clear purpose of the H-4 EAD regulations establish an adjudication timeline for H-4 visas and EADs that the government fails to meet
  • That the certified administrative record filed in the case by the government, for which the Court should be using to determine whether the delays are reasonable or not prevents judicial review, fails to support the delays caused by USCIS. Plaintiffs argue that the administrative record is over-inclusive because it contains information that did not exist at the time of filing the lawsuit, includes documents that are irrelevant to the issue at hand, and includes information about the now abandoned biometrics requirement.
  • Plaintiffs argue that the record is under-inclusive as it does not provide any evidence of USCIS’s purported first-in-first-out processing rule of reason, provides no information on workflows, adjudication guides, or other documents showing USCIS’s processing logic, provides no performance metrics, and does not provide the number of adjudicators.

If summary judgment is granted on behalf of the class, it is likely to bring relief to all of those who were harmed by the actions of USCIS, however, at the time of the writing of this article, the case is still on-going and future filings are scheduled. Both parties are required to file their Opposition Briefs by July 19, 2021, and Reply Briefs are scheduled to be due July 23, 2021. From there, the court will either rule on the motions for summary judgment or set a hearing for argument.

As the case progresses, we will endeavor to keep you updated on the future happenings.

If you are interested in reading more about the on-goings in the case or are interested in following along, the case is Deepthi Warrier Edakunni et al. v. Alejandro Mayorkas, No. 2:21-cv-00393-RAJ (W.D. Wash.)

The Plaintiffs in this case are represented by Jonathan Wasden of Wasden Banias LLC, Jesse Bless of the American Immigration Lawyers Association, and Reddy and Neumann P.C.’s own Steven Brown.

By: Avery Krushall