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Using Mandamus as a tool to expedite pending EAD’s

What is the Employment Authorization Document (EAD)? 

Commonly known as a work permit, an EAD allows certain visa holders to legally work in the United States. While some visas are employment-based (called employment visas), other visas only permit a visa holder to live or study in the United States. This latter group of visa holders must obtain approval to work in the United States separately from their visa.

Who Needs an EAD in Order to Work? 

Individuals who hold a visa that does not independently allow them to work in the United States are eligible for an EAD and are required in order to work in the United States. This includes family-based visas, like the H-4 visa, as well as student visas and other types of non-employment visas. Also, individuals who are waiting to be issued a Green Card can apply for an EAD.

Why are there Delays in Receiving an EAD? 

Visa holders who are required to obtain an Employment Authorization Document (EAD) in order to work in the United States, like H-4 and L-2 visa holders, have been experiencing lengthy delays throughout the COVID-19 pandemic. These delays are due to impacts of the pandemic, including the closing of Application Support Centers (ASC) and USCIS Field Offices, which has slowed the processing times for EADs and other applications. In some cases, processing delays can last over 6 months.

What is an Unreasonable Delay? 

An unreasonable delay occurs when the United States Citizenship and Immigration Services (USCIS), or another agency, takes too long to make a decision regarding a petitioner’s application, including an EAD application. Generally, a delay is unreasonable if it extends beyond the usual processing time for the visa or authorization being applied for. Thus, whether or not a delay is unreasonable is determined on a case-by-case basis. For EAD applicants, a delay is likely unreasonable if no decision is made on the EAD application after 6 months. 

Generally, delays are not reasonable if they are not justified. Courts will evaluate the reasonableness of a delay by looking at the length of the delays; whether Congress provided a timetable or other indication of the processing time; whether human health and welfare are at stake due to the delay; what impact expediting the delayed action would have on agency activities of a higher or competing priority; and what are the interests that are prejudiced by the delay. Finally, courts do not need to find any impropriety by the agency in order to hold that agency action is unreasonably delayed.

What is a Mandamus Lawsuit? 

A mandamus lawsuit is a lawsuit against the government, or in this case the USCIS, to compel a government employee or officer to do something they have a legal duty to do but have failed to do. Individuals who have faced unreasonable delays seeking an EAD can sue the USCIS and receive an order from a judge that requires the USCIS to make a decision on the EAD application. It is important to remember that a mandamus order does not require the USCIS to approve a delayed EAD application. Instead, a judge’s order would only require the USCIS to make a decision, whether that decision is approval or denial. 

Have Mandamus Lawsuits Been Successful at Ending Delays?

Given the ongoing delays facing the USCIS throughout the COVID-19 pandemic, mandamus lawsuits have become a more common tool used by applicants and their attorneys to compel the government to end delays. Often times, merely filing a mandamus lawsuit against the USCIS can cause the agency to make a decision on the case or cases covered by the lawsuit because the USCIS wants to avoid litigation. In other cases, the USCIS may require an order from a judge to ultimately act.

In a 2021 class action lawsuit, Li v. USCIS, eighteen named F-1 visa students who experienced lengthy delays for the EAD received a settlement from USCIS, in which it promised to reach a decision on applications by a similar date. An ongoing lawsuit, Chakrabarti v. USCIS, has been brought by a growing list of plaintiffs who have experienced delays with their EAD applications. The plaintiffs seek a writ of mandamus for the delays as well as an order from the court requiring USCIS to change its policies in the future to prevent delays.

How Quickly Will a Mandamus Lawsuit Cause the USCIS to Act?

When an applicant sues the USCIS, the USCIS has 60 days to just respond. However, sometimes the USCIS will take action within these 60 days to end the lawsuit. Instead of going through the process of litigation or waiting for a ruling from a court, the USCIS will make a decision about a particular applicant’s EAD, which causes the case to become “moot.” This means that the applicant who filed a lawsuit no longer has an issue to sue about because the USCIS voluntarily resolved it by taking the action the applicant’s lawsuit demanded the USCIS make. Thus, the lawsuit would end regardless of whether the USCIS’ decision about the EAD was favorable to the applicant or not. 

What Problems Have Delays Caused?

Delays by the USCIS have caused problems for applicants and their families as well as the companies and employers who seek to employ applicants. For example, many employers have been unable to onboard new employees because the employee has been delayed in receiving their EAD. 

Employees are also losing their jobs when they are delayed in getting their EAD renewed. Even though these employees can file to renew their EAD up to six months before it is set to expire, many of them are not getting their renewals approved before their current EAD expires. On November 10, 2021, U.S. Citizenship and Immigration Services (USCIS) settled the class action lawsuit Shergill v. Mayorkas. The settlement agreement provides for an automatic extension of employment authorization for H-4 spouses who have timely filed for a renewal of the EAD work card via Form I-765, Application for Employment Authorization, if given criteria are met. It is worthwhile to note that only those H-4 spouses who timely file their Form I-765 EAD renewal applications and who continue to have H-4 status beyond the expiration date of their EAD will qualify for the automatic extension of their work authorization for a period of up to 180 days. So if the spouses do not get their I-539/Extension applications approved timely, they will not benefit from the Shergill settlement. Thus, Mandamus may be used as a tool to expedite the pending I-539/H-4 Extension as well. 

Spouses in L-2 visa status may also benefit from similar automatic extensions of their employment authorization and will now be able to enjoy automatic work authorization incident to their visa status. 

Perhaps the greatest problems caused by EAD processing delays are faced by the foreign nationals who require an EAD in the first place. Foreign nationals typically seek an EAD because of financial necessity, as well as the desire to work for American companies. Delays in receiving an EAD can be financially damaging, if not devastating, for many applicants who depend on an EAD for financial stability. 

Are There Delays to Receive Other Immigration Documents? 

The COVID-19 pandemic has caused delays throughout the U.S. immigration. Thus, there have been delays or slowdowns in the amount of immigrant and nonimmigrant visas issued. This has caused concern that the United States has not been issuing the full amount of visas authorized by Congress, causing there to be unused visas by the end of the fiscal year.

Besides delays in the issuance of EADs, there are delays with applications for advanced parole (AP) documentation, and other delays within the visa application process, such as with biometric service appointments. While some delays can be corrected by suing the USCIS, others are caused by factors that are largely beyond the USCIS’ control, and are due to the COVID-19 responses of countries throughout the world. Because countries, as well as specific localities, have their own health and safety restrictions and regulations regarding COVID-19, the many U.S. Embassies and Consulates throughout the world must abide by the specific restrictions and regulations of the country or locality in which they are located. This has caused Embassies and Consulates in certain areas to slow down their services a great deal. And oftentimes, the Embassies and Consulates that are forced to slow down the most are in countries with a lot of visa applicants. 

Mandamus lawsuits can be brought to address delays that are within the USCIS’ control and are unreasonable under the circumstances. Thus, mandamus suits cannot require the USCIS to increase Embassy or Consulate services that were impacted by restrictions imposed in a foreign jurisdiction. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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