Immigrants and Their Advocates File Class Action Lawsuit Against USCIS and DHS for Unlawful Delays in Adjudicating Applications for Employment Authorization

Washington D.C. – Last Friday, three immigrants and two immigration service providers filed a nationwide class action lawsuit against U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) for unlawfully delaying the adjudication of their applications for employment authorization. Filed by the American Immigration Council, Northwest Immigrant Rights Project (NWIRP), Gibbs Houston Pauw, Scott D. Pollock & Associates, P.C., and Van der Hout, Brigagliano & Nightingale, LLP, the complaint alleges that USCIS’s policies and practices of failing to timely adjudicate applications for employment authorization documents (EADs) or, alternatively, failing to issue interim employment authorization, violate the governing regulations and the Administrative Procedure Act.

By regulation, USCIS must either adjudicate EAD applications within a fixed time period or issue interim employment authorization. Yet, USCIS regularly fails to do either, leaving immigrants in a precarious position, unable to work legally and at risk of losing their jobs, related benefits and, in some states, their driver’s licenses. At a recent meeting with AILA members, USCIS representatives indicated that “USCIS no longer produces interim EADs.” Plaintiffs seek this Court’s intervention to compel USCIS to adjudicate EAD applications within the time period mandated by the regulations or, if the regulatory time period has expired, issue interim employment authorization.

Employment authorization yields economic benefits not only for eligible noncitizens, but also for the U.S. economy. Individuals who can prove their eligibility to work in the United States earn higher wages than those who do not. Workers who earn higher wages are better able to provide for themselves and their families, pay more in federal and state taxes, and have more disposable income to spend on goods and services produced by U.S. businesses. Delays by the federal government in providing employment authorization to eligible immigrants undermine these goals. Moreover, employers may be forced to lay off these workers to avoid the risk of fines imposed by ICE.

“USCIS’s failure to timely adjudicate EAD applications wreaks havoc on immigrants’ lives,” said Melissa Crow, Legal Director of the American Immigration Council. “The plaintiffs in our lawsuit have an immigration status that permits them to work, but USCIS delays in issuing them EADs which they need to find or keep jobs. The time for the agency to comply with its own regulations is long overdue.”

“USCIS delays also are a serious drain on resources for NWIRP and other legal service providers,” according to Chris Strawn, Staff Attorney with the Northwest Immigrant Rights Project. “There is an overwhelming demand for immigration legal assistance for low-income persons. Fighting these bureaucratic delays is time stolen from others we could be helping.”

To view the complaint in it’s entirety click here.

Cowles & Thompson commentary: Unfortunately, lawsuits like these are needed at times to require the government to follow its own rules. By law, the government is required to approve or deny EAD applications within 90 days of receipt. Despite this clear requirement, many EAD applications linger past the 90 days, requiring employers to terminate the employment of workers with expired EADs. Employees with EADs should apply 120 days before expiration of the EAD. Doing so should reduce the chance of any gap in work authorization. For questions about EADs or other immigration benefits, you are invited to contact us.