California District Court Denies USCIS Motion to Dismiss Lawsuit Alleging Delays in H-4 EAD Renewals

The U.S. District Court for the Northern District of California has denied a motion from the U.S. Citizenship and Immigration Services (USCIS) to dismiss a lawsuit filed alleging unreasonable delay in issuing work authorization renewals for H-4 EADs, dependents of H-1B visa holders. The lawsuit was filed on Nov. 3 by 45 foreign nationals against the immigration agency.

According to a report in moneycontrol.com, the USCIS filed for a motion on Dec. 9 to dismiss the case “on grounds of improper venue where the lawsuit was filed since only six plaintiffs reside in the district.” The USCIS motion further said that the case was “moot since 39 of the 45 plaintiffs have got their H4 renewals and EADs.” However, on Dec. 15, Judge Jacqueline Scott Corley, dismissed the USCIS claims, noting that “six plaintiffs in a district is sufficient to establish that the venue is proper,” the moneycontrol.com report said.

The H-4 EAD was introduced under the Barack Obama administration in 2015 that allowed the spouses of H-1B visa holders to work, benefitting a large number of Indian women, who are highly skilled women and active contributors to the economy of the country. The work permits were  issued to the spouses of the skilled workers after their employers have begun the process of sponsoring their families’ green cards.

The H-4 EAD closed the employment gap for hundreds of thousands of immigrants. Despite the overwhelming backlog for green cards for Indias, due to the per-country quota, these H-4 visa holders could remain unemployed for up to a decade or more without the EAD. “H-4 spouses, especially those who do not have a STEM career, do not always obtain employment easily, immediately, or in their desired field,” according to a report published last year by the South Asian American Policy and Research Institute (SAAPRI).

Congressional Backing

In a move to further strengthen the case of these dependents, over 60 members of the U.S. House of Representatives, including Reps. Ami Bera, Ro Khanna, Raja Krishnamoorthi and Pramila Jayapal, sent a letter to President-elect Joe Biden, urging him to unilaterally extend the expiration of work authorization documents for holders of H4 visas. 

“We respectfully request that the Department of Homeland Security (DHS)  publish a Federal Register notice on day one of your administration that would extend the validity period of all expired H4 EADs,” the letter said. It pointed out that the changes made during the tenure of President Trump to the way these documents are processed “have led to months-long delays and the loss of, or inability to secure, employment outside of the home, taking researchers, physicians and other highly-skilled roles offline while also adding new financial burdens for these families.” 

The USCIS currently has a backlog of approximately 2.5 million cases, “the highest net backlog in nearly two decades,” the letter said, adding: “Much of the growth in the case backlog at USCIS has been caused by policy changes that have increased the amount of time it takes to process forms and issue visas.”

Noting that the 2015 ruling allowing certain H4 dependent spouses of H-1B visa holders to legally seek employment in the U.S., the letter said that the rule “presented an important step towards rectifying gender disparities in our immigration system, as around 95 percent of H-4 visa holders who have secured work authorizations are women.” Before the rule was granted, many women on H-4 visas described depression and isolation in moving to a new country and not being allowed to work outside of the home,” the letter said. “Unfortunately, these women are losing and will continue to lose their jobs until this is put right, disrupting the lives of their families and the functioning of employers in our districts.”

In an effort to undermine rights for high-skilled immigrant workers, the Trump administration has worked to restrict the temporary non-immigrant H-1B and H-4 visa programs. The issue of H-4 work authorization disproportionately affects immigrant women from South Asian countries. As per the SAAPRI report, 93 percent of all H-4 EADs have been granted to South Asians and 93 percent have been given to women. Well over 84,000 South Asians would be impacted by this policy change.

Also impacted is the H-1B visa program, which allows highly-skilled immigrants, including doctors and nurses, to live and work in the U.S. “Despite the clear need for more medical personnel during the COVID-19 crisis, the Trump administration has issued bans limiting the program, attempted to cripple the program through regulatory changes, and greatly increased the difficulty of obtaining an H-1B visa – simultaneously hampering H4 visa holders and applicants,” according to a press release issued by Rep. Bonnie Watson Coleman (D-N.J.). She was among the lawmakers who co-signed the letter sent to Biden.

In a Dec. 18 report on dependents on work authorization, NBC News highlighted immigrants, mostly women from India, who have lost their jobs because the USCIS failed to renew their work authorization. The report observed that “while the Trump administration has met resistance in its attempts to overhaul the H-1B program as part of its broader efforts to curb immigration, and targeting the spouses of H-1B workers on the H-4EAD program by repeatedly threatening to revoke it,  and by slowing the processing of the work permits — has proven easier.”

The H-4EAD program was “low-hanging fruit in terms of immigration policy, especially considering that Trump had run on much broader sweeping immigration restrictions,” Amy Bhatt, the author of “High-Tech Housewives: Indian IT Workers, Gendered Labor, and Transmigration,” told NBC.