October 22, 2021

Volume XI, Number 295

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October 22, 2021

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October 21, 2021

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October 20, 2021

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Update on Suit Over Government Delays in Adjudicating Approval of H-4, L-2 Visa Extensions

In Washington federal court, H-4 and L-2 spouses are continuing their fight to end the delays in approving visa extensions and work authorization – some of which are taking over a year to adjudicate. The plaintiffs in Edakunni v. Mayorkas are asking the court to decide whether this constitutes an unreasonable delay.

The plaintiffs contend USCIS is not using its workforce effectively and is continuing adjudication delays to force more petitioners and applicants to pay for premium processing and, thus, help USCIS with its budgetary problems. The government counters that the delays are basically due to the disruptions caused by COVID-19 and that the harm suffered by the plaintiffs is “purely economic harm and does not implicate human health or welfare” – therefore, is not unreasonable.

Leading companies and organizations, along with the U.S. Chamber of Commerce, filed an amicus brief in the case, noting the delays in EAD adjudications are “directly and indirectly” affecting the economy. The companies argued that, when the highly educated and highly skilled spouses of the 580,000 H-1B and 75,000 L-1 visa holders cannot obtain work authorization, all of these individuals will ultimately decide to leave the United States and take their talents to other countries. The companies also explained that the costs are not “purely economic.” Many visa holders have made “irreversible life decisions” about housing and having children and “indeterminate gaps in employment authorization” are leading to increased anxiety and depression among those affected.

Meanwhile, the American Immigration Lawyers Association (AILA) sent a letter to USCIS in March 2021 with suggestions on how to deal with the delays:

  • Eliminate unnecessary biometrics;

  • Grant automatic extensions for timely filed EAD applications; and

  • Allow earlier filing of EAD renewals.

In May, USCIS eliminated the biometrics requirement for some applications, including H-4 and L-2 applications, in response to a declaration in Edakunni, but none of AILA’s other recommendations have been adopted and the delays continue.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 189
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About this Author

Minnie Fu, Jackson Lewis, Immigration Litigation Lawyer, Employment VISA Applications attorney
Principal

Minnie Fu is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on assisting employers in obtaining employment-related visas and advising employers on compliance with U.S. immigration laws and regulations.

Ms. Fu has twenty years of experience in employment-based immigration matters, including nonimmigrant and immigrant visa matters, developing corporate immigration policies and procedures for best practices, and strategic corporate planning for international personnel employment by...

703-483-8311
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