International Law and Immigration
Forced to Quit
By Payal Sinha
This article highlights the unprecedented delays caused by federal agencies such as the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) in adjudicating applications of H-1B "derivative beneficiaries" aka their dependents, on time, resulting from procedural changes during the Trump Administration. This article will explore how the agencies failed to recognize the very mandate Congress established under the Homeland Security Act 2002, referencing eliminating any case "backlog." It will explore the impact of such failure, which has caused havoc on these immigrants' lives and forced almost 91,000 immigrants out of their jobs.1 Unfortunately, these delays persist for these immigrants, making it difficult for the highly skilled worker families to sustain themselves in the United States. Finally, we will address the relief and responses introduced by the Biden Administration, advocacy and support from Congresswoman Bonnie Watson's office, and a recent class-action lawsuit filed to hold these agencies accountable.
In the United States, in order to employ an immigrant, the Immigration and Nationality Act (INA) allows employers to petition for the admission of temporary, skilled workers under H-1B classification to perform services for United States employers in specialty occupations.2 The spouses of such H-1B workers are permitted to stay in the United States under H-4 classification during the same admission period as the H-1B nonimmigrant as their “derivative beneficiaries”.3 Although skilled H-1B workers are limited to six years of authorized stay in the United States, employers may file immigrant visa petitions on behalf of those workers to retain their services as permanent residents, resulting in extending their stay beyond six-years.4 These steps eventually led to removing impediments for these immigrants in their pathway to citizenship, as duly noted by USCIS, resulting in contribution to “economic sustainability and growth of the country”.5 (80 Fed. Reg. at 10289)
To address the undue financial hardships placed on H-1B workers and their families transitioning to green card status6 but are delayed in completing the process due to backlogs in the green card country quota system, DHS published regulation allowing certain H-4 spouses to apply for employment authorization.7 Since 1990, this was marked as the first attempt to extend any kind of benefit to H-4 dependents. While the spouses of workers in other temporary worker categories including L-1, E-1, E-2, and E-3 have had the right to work for decades, DHS, finally created H-4 EAD by regulation, bringing the system more in line with these other statuses,8 thereby providing a relief for H-1B nonimmigrants and their families who wish to acquire Lawful Permanent Residency (LPR) status in the United States and who must wait many years for employment-based immigrant visas to become available.
Soon after the announcement of the rule, a group of tech workers formed by Americans who were employed at Southern California Edison filed a lawsuit9 in D.C. District Court opposing this very rule, claiming that DHS lacks authority from Congress to extend employment authorization to H-4 spouses. The court, however, found that the plaintiffs failed to demonstrate irreparable harm and lacked standing, resulting in a denial of the preliminary injunction and dismissed the case. Such efforts marked the beginning of barriers that H-4 dependents had to contend with alongside a possible years-long wait in the permanent residency queue. Those waits are especially long for immigrants from Asia due to a quota system governing their green card applications. This case was subsequently appealed in the U.S. Court of Appeals in D.C. Soon after this appeal, the Trump Administration proposed a ban on this very rule, which loomed as a fear throughout four years as the administration made its intention of getting rid of this rule very clear through negative public comments, and reflected in the final revocation proposal transmitted to the Office of Management and Budget (OMB) in February 2019. This sent panic and chills through the impacted immigrant community.
To add to the plight of H-4 beneficiaries who dare to dream of a better future with families in the United States, the Trump Administration, starting from March 2019, introduced a biometrics requirement to I-539 applications to extend H-4 status as an additional requirement in order to protect the United States from foreign terrorists and individuals who can cause threat.10 However, this reasoning was not supported with data. Due to the additional biometrics requirement, H-4 beneficiaries with higher education and a substantial level of training and experience in their skilled fields suffered exorbitant delays. USCIS stated that these biometrics requirements would not be an additional burden as “an average biometrics would take “seventeen days” to complete”. USCIS added that while biometrics could impact their ability to continue providing the courtesy of adjudicating H-4 cases filed with premium H-1B cases, they would still try to expedite such cases.11 It turns out that the biometrics requirement created a rush of trends that made more than 91,000 people unemployed because their petitions were not timely adjudicated and no further actions were taken by DHS to cure these delays and provide any relief. USCIS stated that “it takes USCIS adjudicators an average of merely 24 minutes to process Form I-539 and 12 minutes to process Form I-765”, yet it is taking USCIS up to 12.5 months to adjudicate these applications according to current processing times.12
8 U.S.C. § 1571 states that, “It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section 1184(c) of this title should be processed not later than 30 days after the filing of the petition.” Congress specifically stated that it is their intent that no immigration benefit should take longer than 180 days to adjudicate. That is why an applicant can only renew their status 6 months before it expires. However, according to the USCIS data for fiscal years (FY) 2014 through 2018, “the agency is failing this Congressional mandate by adjudicating cases at an unacceptably and increasingly slow pace. Other agency data lays bare a USCIS “net backlog” exceeding 2.3 million delayed cases at the end of FY 2017.” This total amounts to more than a 100 percent increase over the span of one year despite only a four percent rise in case receipts during that period.13 USCIS is clearly failing to eliminate and/or take actions to prevent future delays as well as simplify procedures to establish more transparency.
The adjudication delay and the inability to accommodate the capacity to fulfill the biometrics requirement will always cause H-4 beneficiaries not to secure status for three years according to basic mathematical calculations.14 Not being able to get work authorization for a period of three years affects their ability to continuously work without interruptions. This loss of jobs does not reflect the capabilities of H-4 holders but the sheer flawed systematic failure and the addition of burdensome requirements.
H-4 beneficiaries are fingerprinted at their United States consulates, during visa interviews by Embassy Officials and every time they enter the United States by the Customs and Border Patrol. The addition of biometric requirements has created a massive setback even before the COVID pandemic. These delays are not only making these H4 holders jobless but have put them at a vulnerable position, by putting them at the mercy of their spouses and taking even the basic ability to renew their driver’s license or medical insurance, creating a perfect environment to breed “domestic violence” by tilting the balance in the relationship, through not only making these beneficiaries financially dependent on the spouse, but also leaving them without status, pending adjudication. Delays caused by the complete failure due to the inactions by these federal agencies have left these immigrants in a constant state of hopelessness and depression. This feeling has intensified due to the inability to visit their home country to see their families, who have been impacted by the losses during the pandemic, resulting in mental havoc on these immigrants. To resolve these difficult situations, many immigrants have made several attempts to get some clarity from the USCIS by seeking assistance from an Ombudsman Office Inquiry,15 but have not succeeded in getting any useful assistance. In order to deal with the backlog on the processing applications by USCIS, many have made inquiries through Congressional assistance16 but have failed to receive any concrete response from USCIS. With no other options left, more and more immigrants are filing federal lawsuits against these capricious practices by USCIS, which is creating an additional financial burden on these families as many have already lost their legal status and their jobs.
It has taken several years for Big Tech companies and other advocacy groups to finally notice these unreasonable practices. Recently, a class action lawsuit was filed by almost sixty plaintiffs, in partnership with American Immigration Lawyers Association and Wasden Banias, LLP (experts in handling federal litigation against unreasonable delays),17 intending to hold USCIS accountable for the continuous mishandling of cases under H-4/L-2 category of visa holders and intending to seek an immediate resolution for the families stuck with exasperated delays. Companies like Google, are also bringing attention to resolve procedural issues and urging the federal government to unravel red tape costing foreign workers their jobs.18 On January 21, 2021, the Biden Administration terminated the prior administration’s unfinished efforts to end H-4 eligibility for Employment Authorization Documents,19 which is a huge sigh of relief for tens of thousands of H-1B workers and their family members, who have lived with constant threat of having their ability to make a living revoked. The withdrawal of the prior administration’s proposal to terminate the H-4 EAD could be seen as an initial effort to restore the legal immigration system. A June 2020 CATO Institute report found that “H-4 EAD employees hold professional positions in all areas of our economy. The same report estimated that nearly 90% of H-4 workers were women with college degrees. Per the CATO institute, the economic effect of terminating H-4 EAD employment would contract the economy by at least $7.5 billion annually.20 In light of this economic benefit, the Biden Administration endeavors to secure the H-4 EAD on a long-term basis by including this benefit as part of the U.S. Citizenship Act of 2021, the comprehensive immigration reform proposal, that would grant this security for the H-4 EAD benefit by enactment into law.21
Even though these long-term plans are a step towards significant development in securing a better future for the high-skilled labor, it does not resolve the problem at hand. The current trend of adjudication delays prevents H-4 dependents from engaging in employment which can further lead to isolation, depression, anxiety, feelings of guilt, and a loss of self-worth. Increased isolation – coupled with complete financial dependence – can make leaving an abusive relationship dangerous and, in some cases, impossible. To further join the efforts to resolve the current delay, Congresswoman Bonnie Watson Coleman, with 60 members of the United States House of Representatives has joined a call to action and urged President Biden to unilaterally extend the expiration work authorization documents for H-4 visas holders, as the Trump Era additional regulations had led to months- long delay in adjudication of processing of applications resulting in the loss of, or inability to secure, employment outside of the home for many women, also adding new financial burdens for these families.22 Independence and equal opportunity are fundamental American values. These delays have deprived H-4 beneficiaries the ability to continue to pursue their professional careers is antithetical to principles this country is built on, especially when these delays are unreasonable causing economic, psychological, and personal harms to more than 100,000 professionals, their families, and their American communities. Providing H-4 beneficiaries with the ability to obtain gainful employment has proven to be an economic and fiscal boost to the United States, as these beneficiaries are highly skilled with substantial level training and education. Unfortunately, these delays cause continuous disruption of the lives of highly skilled immigrant families forcing them to quit and this must stop, by making it a priority to hold federal agencies accountable and make these adjudication processes more transparent.
Endnotes: 1. Ike Brannon and M. Kevin McGee B, (spring 2019) “Hurting Americans in Order to Hurt Foreigners”, CATO Report 2. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). 3. See 8 C.F.R. § 214.2(h)(9)(iv); 80 Fed. Reg. 10284, 10286 (USCIS) (Feb. 25, 2015). 4. American Competitiveness in the 21st Century Act (AC21), Pub. Law No. 106-313, § 106(a)- (b) (Oct. 17, 2000); Pub. Law No. 107-273 § 11030A(a)-(b) (Nov. 2, 2002). 5. See 8 U.S.C. §§ 1153(b), 1154(b). 6. See 8 U.S.C. §§ 1153(b), 1154(b); In order to qualify for work authorization, a H-4 visa holder “derivative beneficiaries” who derive their lawful status from the status of the primary H-1B visa holder, would have to show that: 1.The H-1B extension been approved; 2. Is there a marital relationship between the H-4 and H-1B); and, 3. Does the spouse have an approved Form I-140 (for stays exceeding the six year limit). 7. See 8 CFR Parts 214 and 274a [CIS No. 2501–10; DHS Docket No. USCIS– 2010–0017] 8. In the EB-2 and EB-3 categories, the Indian priority date in April 2020 was January 22, 2009. No one whose employer sponsored them after that date could apply for permanent residence from India. State Department, “Visa Bulletin,” April 2020. 9. Save Jobs USA v. DHS, Case No. 16-5287 (D.C. Cir. 2019) 10. Executive Order 13780: Protecting the Nation From Foreign Terrorist Entry Into the United States Initial Section 11 Report, (January 16, 2018), Department of Homeland Security 11. Gudla v. Koumans Case No:1:19-cv-01667, (D.D.C. Oct. 21, 2019) 12. Gudla v. Koumans Case No:1:19-cv-01667, (D.D.C. Oct. 21, 2019) 13. DHS, “Annual Report on the Impact of the Homeland Security Act on Immigration Functions Transferred to the Department of Homeland Security” (Apr. 13, 2018); AILA Policy Brief: USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration (January 30,2019) 14. Gona v. U.S. Citizenship & Immigration Servs., Case No. 1:20-cv-3680-RCL, (D.D.C. Feb. 25, 2021) 15. The Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman), established by the Homeland Security Act of 2002, assists individuals and employers in resolving case problems with U.S. Citizenship and Immigration Services (USCIS). 16. If an immigrant has issues regarding their immigration case, a member of the U.S. Congress may be willing to inquire with a Federal immigration agency, such as U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) on their behalf. Members of Congress are responsive to their constituents,and usually have a staff dedicated to work with federal agencies. Federal agencies also tend to be responsive to members of Congress because agencies are funded by Congress and subject to their oversight. USCIS has an Office of Legislative and Intergovernmental Affairs with some 120 staff located across USCIS domestic offices responding to over 200,000 congressional inquiries per year. 17. AILA and Wasden Banias, LLP File Lawsuit Against DHS for L-2 and H-4 Processing Delays (March 23, 2021); Edakunni et al v. Mayorkas, Case No: 2:21-cv-00393 (D.D.CMarch 22, 2021) 18. Mercury News, By Ethan Baron, (April12, 2021) “H-1B: Google urges feds to fix ‘logjam’ costing foreign workers’ jobs” 19. Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization: “Withdrawn”OIRA Conclusion of EO 12866 Regulatory Review (01/25/2021) 20. CATO Report By David J Bier (June 16, 2020) “The Facts About H-4 Visas for Spouses of H-1B Workers” 21. White House, “Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System” (January 20, 2021) 22. Watson Coleman Urges Incoming Administration to Extend Work Authorizations for H4 Visa Holders (December 16, 2020), available at <https://watsoncoleman.house.gov/uploadedfiles/final_letter_from_60_moc_to_president_elect_biden_on_h4_visa_ead_relief.pdf>