Successful Results from EAD Delay Litigation
Reddy & Neumann, P.C. has been proud to lead the charge against USCIS’ unlawful delay of EAD applications. To date, we have filed eight lawsuits in federal court representing hundreds of EAD holders who were at risk of losing or have already lost their jobs due to USCIS delays in adjudication. If you are interested in some background information of the lawsuit, here are some links you may find helpful: https://rnlawgroup.com/h-1b/695-what-can-you-do-when-your-h-4-processing-is-delayed and https://rnlawgroup.com/h-1b/703-why-we-sued-uscis-for-h-4-and-h-4-ead-delays-2.
Sustained Success through Litigation
We have crunched the numbers on every EAD applicant included in our lawsuits so far and found that EADs are being approved on average in just 27 days from the date our complaint has been served on all relevant parties.
Of course, this is an average only. Applications can and do go beyond 27 days. But, we dug even deeper into our data on applications included in our lawsuits and found that, by day 45, over 98% of the EADs included in our lawsuits have been approved.
This is a significant improvement over “normal” USCIS processing times, which are completely unreasonable, and our experiences demonstrate that the lawsuit is working based on two additional data points: (1) our plaintiffs are receiving approvals while applicants who filed their H-4 and EAD renewals before our plaintiffs remain pending. For example, in one of our lawsuits filed just last month, a plaintiff had submitted her H-4 and H-4 EAD applications to USCIS on 7/1/2019 and has already received approvals through litigation. Compare that to another plaintiff who has just come to us for our upcoming lawsuit who filed on 6/1/2019 and the applications are still pending; and (2) we have had a handful of plaintiffs where the spouse’s H-4 and H-4 EAD are approved as a result of the litigation, but weeks later the accompanying child’s H-4 is still pending. Since only the spouse’s H-4 had been included in the litigation, the litigation process has clearly resulted in a faster approval for the spouse, as evidenced by the fact that the child’s H-4 that was not included in the litigation remains pending. This was an unanticipated outcome in some of our earlier lawsuits, and, to avoid this in the future, we have started including the H-4 child’s receipt information in our complaints in order to get those applications approved along with the parent.
What Happens Once a Lawsuit is Filed?
Reddy & Neumann, P.C. is filing I-539 and I-765 delay lawsuits on a continuous basis. Once the lawsuit is filed through the federal court’s online system, we receive a summons from the judge assigned to the case typically within 2-4 business days of filing. This document is a formal document notifying the government defendant that a lawsuit has been filed against them and that they need to appear in court. Once this summons is issued, we work with an outside company called a process server to formally serve the local US Attorney’s Office, the US Attorney General, and the Department of Homeland Security General Counsel with the lawsuit. Even though the government may informally know of the lawsuit as soon as it is filed, this procedure is called “service of process” and is the formal way to notify the government of the lawsuit against them. Once the US Attorney’s Office is “served,” a 60-day clock starts.
From that point, the attorneys for the government work to review the lawsuit and order all of the files. Unfortunately, the USCIS Service Centers have not digitalized anything and are not always organized, so it does take time for the applications to be found. Further, they still need time to adjudicate the cases as well as their other case work, so not all cases can be done within the 27-day average time mentioned above. While the government does get 60 days to respond to the lawsuit, to date, the government has worked to approve practically all applications within the 60-day time frame. The few applications that have gone beyond 60 days were due to a USCIS system issue that was resolved within 3 days of the 60th day or due to an RFE that was issued for required evidence that was not included in the original application(s).
Litigation continues to be the only way to hold USCIS accountable for their delays and ensure the applications are processed in a timely manner. We recommend you file a lawsuit as soon as possible once the H-1B is approved and it has been more than 30 days since the H-4 and H-4 EAD have been filed.
By: Emily Neumann and Steven Brown