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Class Action Lawsuit Seeks to Force Timely Issuance of Employment Authorization

July 08, 2015
Stephen Tarnoff

Frustrated by the government’s failure to issue employment authorization documents in the time frame mandated by law, a group of plaintiffs have filed a nationwide class action lawsuit against the United States Citizenship and Immigration Services (USCIS) and the U.S. Department of Labor (DOL) seeking to force government agencies to comply with the law and regulations.

The lawsuit, filed in U.S. District Court in Seattle last month, contends that USCIS and DOL have unlawfully failed to comply with regulations requiring issuance of employment authorization document (EAD) cards within 90 days of receipt or to issue interim EAD cards as required in the regulations. Such applications are filed on Form I-765 and are available to a variety of foreign nationals, including green card applicants, students, and individuals filing for asylum.

According to the lawsuit, USCIS is required by regulation to adjudicate all applications for employment authorization, except initial EAD applications based on asylum applications, within 90 days. Initial EAD applications based on an asylum application must be adjudicated within 30 days.

The regulations also mandate that failure by USCIS to timely adjudicate EAD applications requires issuance of an “Interim Employment Authorization document” to guarantee affected applicants the ability to continue working for a period not to exceed 240 days or until the case is adjudicated.

“Yet, USCIS regularly fails to timely adjudicate EAD applications, and never issues interim employment authorization,” the suit adds.

According to the lawsuit, employment authorization helps not only eligible foreign nationals but also the U.S. economy. Individuals with EADs earn higher wages than those who do not have one. Individuals with EADs are better able to provide for themselves and their families, pay more in federal and state taxes, and have more disposable income to spend on goods and services produced by U.S. businesses. Delays by the federal government in providing employment authorization to eligible foreign nationals undermine these goals and results in some employers laying off these workers to avoid the risk of fines imposed by Immigration and Customs Enforcement (“ICE”), the suit contends.

The government’s failure to comply with the regulations also leave EAD applicants in a precarious position because they are unable to work legally, are at risk of losing their jobs and related benefits and, in some states, their driver’s licenses.

The lawsuit was brought by two immigration service providers, the Northwest Immigrant Rights Project and The Advocates for Human Rights, and three individuals. The lawsuit contends the parties have been irreparably harmed by the agencies’ actions.

The suit seeks declaratory and injunctive relief to remedy the agencies’ unlawful failure to timely adjudicate EAD applications and their unlawful withholding of interim employment authorization, meaning that the lawsuit wants the District Court to compel the U.S. government to timely adjudicate EAD applications or, alternatively, timely issue interim employment authorization to all noncitizens who have waited the relevant period.

Individuals with pending I-765 applications that have exceeded 90 days without receiving an EAD or who are nearing the 90 day limit without having received a response from the government can contact attorneys at Minsky, McCormick & Hallagan for assistance.

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