August 19, 2020 – USCIS Agrees to Settlement Easing Work Permit Rules
USCIS and the parties in the case detailed on this page have agreed to a settlement that will allow foreign workers whose applications for employment authorization (Form I-765) were approved to begin working before receiving their work permits.
Under the settlement, a worker’s approval notice (Form I-797) dated from December 1, 2019 through August 20, 2020 will temporarily be considered evidence of employment authorization while the production of Employment Authorization Documents (EADs) is delayed amid the “extraordinary and unprecedented COVID-19 public health emergency.”
“Employees may present their Form I-797 Notice of Action showing approval of their I-765 application to their employers as a list C document for purposes of compliance with Form I-9 until October 15, 2020,” the consent order, issued August 19, reads.
Pursuant to the settlement, USCIS must update its website to reflect the change—an action the agency has already taken even while the settlement waits for the judge’s final approval.
Though admitting to no liability or fault, USCIS and the other defendants have determined to settle the case to avoid the risk, expense and burden of drawn-out litigation, while the plaintiffs have determined that it is in their best interests to address the “immediate and irreparable harm” allegedly faced by affected individuals, the order states.
“All Parties have compromised certain claims, defenses and remedies to reach a negotiated resolution,” according to the document.
August 3, 2020 – Judge Orders USCIS to Print Work Permits
On Monday, the federal judge overseeing this case granted the plaintiff’s motion for a temporary restraining order requiring USCIS to print work permits within seven days for foreign citizens whose employment authorization applications had been approved.
In the same order, Chief Judge Algenon L. Marbley denied USCIS’s motion to dismiss the case, striking down USCIS’s argument that it has no statutory deadline for when to print EADs.
“The fact that there is no statute or regulation setting a timeline for action does not mean that the agency retains unfettered discretion to issue EADs at any time they wish,” Judge Marbley wrote in his August 3 order, adding that courts reviewing similar claims have determined that in the absence of such a timeline, the court retains jurisdiction to decide whether the delay was unreasonable.
In granting the temporary restraining order, the judge noted that those still waiting for their EADs to be printed suffer “an immediate threat of harm” in that they are unable to provide for themselves and their families and must rely “on the mercy and kindness of others for basic necessities such as shelter and food.”
Two of the plaintiffs who were added to the suit in a July 27 amended complaint are currently residing in a Los Angeles homeless shelter while they wait to receive their EADs, the order states.
“Both of those Plaintiffs are concerned about the possibility of contracting the COVID-19 virus by remaining at the shelter,” the judge wrote. “This too poses a risk of immediate harm.”
The temporary restraining order will remain in effect until the adjournment of the preliminary injunction hearing scheduled for August 10, 2020.
A proposed class action claims roughly 75,000 foreign citizens with approval to work in the U.S. risk being unable to obtain or maintain employment due to United States Citizenship and Immigration Services’ (USCIS) failure to print their work permit cards.
Filed against USCIS and two officials, the 20-page lawsuit out of Ohio alleges the immigration agency has significantly slowed or stopped providing workers’ Employment Authorization Documents (EADs) due to a “deliberate and intentional decision” to terminate its printing contract with a third party “without having any intention or plan to replace that printing contract” or otherwise produce the documents.
While USCIS has historically printed EADs within 48 hours of approving a foreign worker’s employment authorization application, workers now face months-long delays after receiving approval to work in the U.S. before they are legally able to do so, the suit explains. According to the case, USCIS’s approval is legally insufficient to confer permission to work given foreign workers must provide evidence to employers by presenting a valid and unexpired EAD.
“Defendants’ actions and failures to act have intentionally, deliberately and/or willfully inflicted irreparable harm on Plaintiff and class members, who are unable to work despite having been granted employment authorization, solely because of the lack of an EAD,” the complaint states.
The plaintiff, a resident and citizen of India, says she was admitted to the U.S. as an H-1B nonimmigrant to work at Nationwide Insurance and was granted a change to H-4 status as a dependent of her husband, who works for American Electric Power pursuant to a H-1B petition that will be valid until June 7, 2023. Although the plaintiff’s applications for an H-4 status extension and employment authorization were approved by USCIS on April 7, 2020, she has not received a physical employment authorization card, the lawsuit states.
“Generally, the EAD is produced and sent to the applicant within 48 hours of the approval,” the complaint notes. “It has been over 105 days since USCIS approved Plaintiff’s application and Defendant still has not printed and sent the EAD to Plaintiff.”
Though the plaintiff, through counsel, made several attempts to address the issue with USCIS and even engaged the assistance of Senator Rob Portman (R-OH), she was repeatedly told that the agency “is unable to expedite the production of EAD cards,” per the complaint.
According to the suit, the plaintiff was forced to stop working for her employer on June 7, 2020 due to the expiration of her previous EAD and was informed she would be terminated if she could not provide proof of employment authorization by August 9.
Alleging violations of the U.S. Constitution, the case seeks a temporary restraining order, writ of mandamus, and injunctive and declaratory relief compelling the defendants to issue EADs to the plaintiff and proposed class members “immediately” and no later than seven days after the court’s order.
The plaintiff’s counsel said in a statement to Law360 that the lawsuit was “born out of extreme frustration,” noting that he only made the decision to file the case as a proposed class action after reading a Washington Postarticle detailing the printing delays.
“We’ve made every effort that we could, but USCIS is not a user-friendly agency anymore,” the plaintiff’s counsel said. “We had just reached the end of what we could do short of filing a lawsuit.”
USCIS, which was hit with another lawsuit last month over alleged delays in providing naturalization ceremonies for those who are one step away from becoming U.S. citizens, is itself seeking a $1.2 billion bailout amid financial woes caused by the COVID-19 crisis.
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