Immigration Roundup: Working Against the Clock


Has U.S. Citizenship and Immigration Services bitten off more than it can chew?

A recent report from the Citizenship and Immigration Services Ombudsman, as well as a recent proposed class action both claim that the agency hasn’t been processing employment authorization document applications before current EADs expire. And that’s even when applicants file their I-765 forms on time.

In its June 30 annual report, the CIS Ombudsman said the USCIS can’t keep up with EAD applications over the summer because they coincide with increases in demand for other immigration benefits. Although the USCIS adjudicates the vast majority of applications within the 90-day period required under the regulations, thousands of applications remain pending beyond that limit each year.

That means thousands of workers can’t earn a living and thousands of businesses have to fire their employees or risk violating the legal prohibition on employing unauthorized workers.

Delays in EAD processing are having a particularly bad effect on the deferred action for childhood arrivals program, according to the report. During December 2014 and January 2015, the CIS Ombudsman received 215 requests for assistance from DACA renewal applicants—77 percent had an EAD expire before the renewal application was processed.

More than 30 percent of the DACA cases where the EAD expired before the renewal was processed involved a renewal application that was timely filed (at least 120 days before expiration). Another 42 percent weren’t timely filed, but the USCIS still was taking longer than 120 days to process the applications, the report said.

The lawsuit currently pending in federal district court in Washington state makes similar claims. The plaintiffs also are arguing that USCIS regulations require that interim EADs be issued if the USCIS doesn’t meet its deadline.

The three named plaintiffs include a woman who filed to renew her EAD along with an asylum application, in which case the regulatory processing deadline is 30 days; a DACA renewal applicant; and a person who had an EAD through temporary protected status but filed for renewal in conjunction with a pending asylum application.

In all three cases the EADs expired before the renewal applications were adjudicated, and the USCIS took longer to adjudicate the applications than the regulations allow. The agency also didn’t issue interim EADs, the complaint said.

The plaintiffs have filed a motion for summary judgment, citing the CIS Ombudsman’s report, among other things.

The CIS Ombudsman said in the report that it has informally recommended that the USCIS issue interim EADs to DACA renewal applicants who file their renewal applications on time, and is considering issuing formal recommendations as well.

Processing delays that are not the fault of the applicant and which result in expiration of DACA and work authorization contradict the “spirit and purpose” of the program, the report said.

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