L-2 and L-2 EAD Delay Litigation

             The L-2 visa allows for the temporary transfer of foreign national companies’ employees to the United State to continue employment at an office of the same employer, its parent, branch, subsidiary or affiliate. The L visa requires the employee being sponsored work as a manager, executive, or utilizes specialized knowledge or skills.  The dependents of an L-1 nonimmigrant (i.e. spouse and unmarried children under 21 years of age) are entitled to L-2 status and are subject to the same period of admission and limitations of the L-1 nonimmigrant. The L-2 spouse is eligible for an EAD. Typically, L-2 and L-2 EAD applicants would file their applications concurrently with their spouse L-1 petition in premium processing to ensure fifteen day adjudication.

            Our firm has recently learned L-2 applications, even when filed concurrently with a premium processing L-1 petition, are not being adjudicated in a timely manner. This development likely stems, at least in part, from USCIS March 2019 introduction of biometrics requirements for I-539 applications. As a result, it appears USCIS will no long adjudicate L-2 and L-2 EAD applications when they are filed concurrently with an L-1 petition in premium processing. The result will be L-2 cases to be adjudicated in normal USCIS processing times.

            Current processing times of I-539 applications can be as long as eight and a half months. This delay can significantly impact L-2 dependent spouses that have also applied to renew employment authorization or to seek employment authorization via their L-2 EAD. The only option seemingly available to those seeking immigrant benefits, like an L-2 and L-2 EAD, is to utilize the federal courts by filing an Administrative Procedures Act (APA) delay case against USCIS to compel the service to act.

            USCIS slow processing times have lead applicants to believe this is the new normal. However, USCIS processing times are mostly irrelevant when it comes to how long USCIS should take to adjudicate cases. 8 U.S.C. § 1571 provides that applications such as L-2 and L-2 EADs should be processed within 30 days of receipt.

           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 L-1s and the L-2, should take only thirty days to adjudicate. The timeline is not predicated on filing a case in premium processing, this is what Congress intended the normal timeframe for adjudication to be.

            Prior to litigation, L-2 Applicants can present their case for a timely approval to USCIS at the filing of the petition. 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. Factors such as potential job loss, loss of employment benefits, and other forms of economic hardship can be used to put USCIC on notice that failures to timely adjudicate these applications will result in direct harm.

            So, what can you do if your L-2 and L-2 EAD have been pending for more than thirty days? When an L-2 Application processing go beyond what Congress has intended, applicants have the option of filing an APA delay case in federal court to compel USCIS to act on the case. While compelling USCIS to act on a case does not guarantee an approval, it does force them to do their jobs by processing the application.

            The Administrative Procedures Act (APA) requires USCIS to carry out its duties to complete the adjudication within a reasonable time. As such, the 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). This means that if USCIS is sued in a federal district court under the APA that the court is within its authority to compel USCIS to adjudicate a case that has not been adjudicated within a reasonable time.

            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). The courts look to six TRAC factors: the agency’s time to decision must satisfy a “rule of reason”; whether a congressional “timetable” or “other indication” informs this rule of reason; delays affecting human health and welfare are “less tolerable” than delays that might be reasonable for economic regulations; the effect of the relief on competing or higher agency priorities; the nature and extent of the interest prejudiced by the delay; and the agency delay may be deemed unreasonable even in the absence of “any impropriety lurking behind the agency lassitude.” More information regarding these TRAC factors can be found in Telecomms. Research & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 76 (D.C. Cir. 1984).

            Due to USCIS inability to justify their delays, the fact that Congress has expressly given deadlines, and the true need to timely process immigration benefits, courts have typically found that USCIS delays are unreasonable based on the TRAC factors. In the L-2 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 L-2 EAD employment, or impacts their ability to apply for or continue their education.

            Once USCIS has gone beyond a reasonable amount of time processing your application you can file an APA delay case to compel them to act. The unfortunate truth is that litigation seems to be one of the only ways to force USCIS to competently perform their job. While the Trump administration has worked hard to construct an “invisible wall” the courts allow individuals an opportunity to knock that wall down.

            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. For more information on litigation please visit Reddy and Neumann P.C.’s website.

By: Justin Rivera

Justin is an associate attorney at Reddy and Neumann.  He practices immigration law with an emphasis on H-1B visas.