Success Story: H-4 EAD Litigation

Friday March 12, 2021
Attorney Mika B. Kozar, filed a lawsuit for a bank employee seeking a D.C. federal court to compel U.S. Citizenship and Immigration Services to address delays in his visa renewal application, saying the delays put him at risk of losing his job. The complaint said that the USCIS has unreasonably delayed renewing his visa and employment authorization despite approving his wife's H-1B renewal two months ago. "It stands to reason that if an agency requires applicants applying for renewal of work permission to wait until the 6 month window prior to expiration of the document being renewed, that the agency will act in less than six months to complete all processes necessary to deliver a work permit," Plaintiff said. Attorney argued that USCIS' failure to rule on his H-4 visa renewal meets all the criteria of the D.C. Circuit's six-point test, known as TRAC factors, for determining whether an agency delay is unreasonable. The factors were elaborated in the D.C. Circuit's 1984 Telecommunications Research & Action Center v. FCC decision. The first two factors concern whether the time taken by the agency is "governed by the rule of reason" or an existing law, while the third factor emphasizes health and welfare considerations. Citing irreparable harm to his family and his employer, Plaintiff asked the court to invoke its authority under the Administrative Procedure Act and the Mandamus Act to compel USCIS to perform its duties and process his visa and employment authorization renewals before his current documents expire on Dec. 7. Unless USCIS approves his work authorization before that deadline, Plaintiff said his employment will be terminated and he will lose his $8,000 monthly net income. Those funds are particularly important to his family in the New Year when his wife is scheduled to go on maternity leave with a reduced salary. Plaintiff said that he would not be eligible for unemployment benefits if he is forced to leave his job at Bank, explaining that individuals must be seeking employment to qualify for those benefits, which he would not be able to do without a valid employment authorization document. Along with the lost wages, Plaintiff said his New Jersey state driver's license would also expire later in December, and he would not be able to renew it without proof of valid immigration status. The fourth and fifth TRAC factors require the court to weigh the delayed agency action against the office's competing priorities and its potential impact. Plaintiff argued that these also landed in his favor, saying that renewals "take minimal time" for USCIS to decide, while continued inaction would upend his family's life and finances. The sixth factor states that a delay does not have to be caused by impropriety within the agency to be unreasonable. Plaintiff also said his termination would be against the public interest, since it would cause problems on a "critical project" he is currently working on for the corporate risk management team of CIT Bank, the fourth-largest U.S. commercial bank in terms of consolidated assets according to the U.S. Federal Reserve. "During the present COVID-19 pandemic health crisis, now is not the time to be putting workers employed in key roles on projects for critical infrastructure organizations at risk of job disruption or loss," Gala told the court. Plaintiff is represented by Mika B. Kozar of the Law Office of Thomas V. Allen PLLC. The USCIS approved the H-4EAD to put an end to the plaintiffs long pending application.

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