The People Strike Back: USCIS Sued Over “Extraordinary Processing Delays” for H-4 / 
L-2 Extensions and EADs

AAIL lawsuit

Frustrated by lengthy delays that can run for 18 months or more, on March 22, 2021 the American Immigration Lawyers Association (“AILA”) filed a class action lawsuit against the U.S. Citizenship and Immigration Services (“USCIS”) to force the government agency to speed up processing of applications for the dependents of H-1B and L-1 workers. Until former President Trump’s “Buy American” Executive Order, these applications had traditionally been adjudicated at the same time as the principal worker’s underlying H-1B or L-1 petition.  However, because of its interpretation of Trump’s Executive Order, USCIS added additional measures to the processing of these cases that have caused delays not previously seen before.  

The impact of the delays can be quite severe to affected spouses.  For example, most states tie a foreign national’s driver’s license validity to a foreign national’s approved period of admission.   Since applications cannot be filed more than the 6 months in advance of the expiration of a foreign national’s status and dependent applications are not eligible for premium processing service, if processing times exceed 6 months (which is frequently the case) then it is impossible to avoid a lapse in the foreign national’s ability to drive.  

Furthermore, since the Employment Authorization Documents (“EADs”) that are issued to H-4 and L-2 spouses are not eligible for the automatic 180-day extension of their employment authorization that is provided to other categories when a renewal application is timely filed, a delay in processing of over 6 months also guarantees that these spouses, who are often highly educated, have periods where they are unable to work.

The lawsuit details several ways in which the Trump administration added unnecessary additional steps to the adjudication of these applications that has resulted in processing times doubling or tripling.  It sets the following classes:

H-4 / L-2 class eligibility

The primary relief requested by AILA is that USCIS promptly adjudicate any related filing within 7 days of a foreign national becoming a class member.  It also is requesting that L-2 spouses no longer be required to apply for an EAD and instead by employment authorized merely by virtue of being the spouse of an L-1 worker.

This is an important step in attempting to undo some of the real harm caused by former President Trump’s policies, and we will keep you informed on any important developments.

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