By Hannah Albarazi

Law360 (January 19, 2021, 5:34 PM EST) -- A Texas federal judge rejected a preliminary injunction bid by immigrant spouses challenging the U.S. Citizenship and Immigration Services' delayed processing of work permits, finding Sunday that while they had shown human health and welfare to be at stake, they hadn't shown their claims would likely succeed on their merits.

U.S. District Judge David C. Godbey said a group of H-4 applicants and visa holders suing the USCIS failed to establish that the agency acted in bad faith by delaying adjudication of their work permit applications or renewals. The judge refused to issue a preliminary injunction requiring the agency to expedite their work permit applications, saying that a plain reading of the regulations shows the spouses are not entitled to an automatic extension of their work authorization.

"At this stage in the litigation, the court has little evidence that USCIS acted in bad faith," Judge Godbey wrote in his order.

The judge, however, acknowledged the threat posed by the delayed adjudication.

"Here, delays in work authorization result in the complete loss of plaintiffs' ability to support themselves and their families, including their children. Plaintiffs are unable to renew their driver's licenses and may lose health insurance as a result of unemployment," Judge Godbey wrote.

But the judge said granting the injunction would only introduce further inefficiencies into the system. He explained that granting the spouses' relief, and compelling the USCIS to place them at the front of the queue, would harm other applicants.

While the court filings in this case are largely sealed from public view, Judge Godbey's Sunday order offers some background of the litigation.

Judge Godbey said a group of 314 H-4 visa holders and applicants filed suit against the federal government in September 2020, challenging prohibition by the USCIS on automatic extensions for H-4 employment authorization documents and alleging unlawful delay in deciding applications, in violation of the Administrative Procedure Act.

H-4 visas are for the spouses of foreigners who enter the U.S. on H-1B specialty occupation visas. The length of an H-1B visa determines the length of the H-4 visa. H-4 visa holders can apply for employment authorization, but unlike their spouses on H1-B visas, they do not enjoy an automatic extension of work authorization while their renewal bids are being adjudicated.

Data taken in 2018 from the U.S. Department of State's Bureau of Consular Affairs shows that the issuance of H-4 visas more than doubled from roughly 66,000 in 2010 to roughly 136,000 in 2017, with the vast majority of those visas going to applicants from India.

In 2020, with the onset of the novel coronavirus pandemic, the number of H-4 visa applicants sunk back down to just more than 66,000, according to the Bureau of Consular Affairs' 2020 data.

Also as a result of the COVID-19 pandemic, the USCIS also temporarily paused its in-person services between March and July 2020, creating a backlog in biometrics appointments and, in turn, a backlog in employment authorization adjudications.

This backlog led to some H-4 visa holders experiencing gaps in employment authorization.

The H-4 visa holders suing the federal government allege the agency engaged in bad faith efforts to unreasonably slow down the adjudication of their employment authorization documents.

Additionally, the H-4 visa applicants claim the USCIS is slowing down the application process by deciding applications sequentially rather than concurrently and by requiring applicants to provide biometric information.

The spouses sought an injunction ordering the USCIS to decide their pending H-4 extension and work authorization renewals within a week.

But the USCIS argued that only seven of the 314 plaintiffs reside in the Northern District of Texas and, therefore, the venue is improper. The government also asserted that some of the plaintiffs' applications have been adjudicated, rendering their claims moot.

Judge Godbey, in his order Sunday, agreed to only consider claims brought by plaintiffs whose work authorization renewal applications have not yet been decided but determined the Northern District of Texas to be a proper venue for most plaintiffs. The judge noted that only one or more plaintiffs need reside in the district where the suit is filed and that in this case, at least seven plaintiffs reside in the district.

The judge said the USCIS' denial of automatic extensions for H-4 visa holders and applicants did not constitute an arbitrary and capricious final agency action and he agreed with the federal government that Congress has not provided a specific timetable by which the agency must process applications for H-4 work permits. 

The judge, finding that the spouses failed to establish that their unlawfulness claim is likely to succeed on the merits, denied their preliminary injunction bid Sunday.

In a footnote to the opinion, Judge Godbey wrote, "Plaintiffs' counsel has filed scores of nearly identical cases across the country alleging unreasonable delay in processing work authorizations for H-4 visa holders ... Thus far, courts have generally denied plaintiffs' motions for preliminary injunction and to expedite discovery."

Judge Godbey pointed to, among other recent cases, a California magistrate judge's November 2020 denial of 33 H-4 visa holders' bid for a preliminary injunction on the grounds that plaintiffs were unlikely to show that the USCIS owed them automatically refreshing work permits.

The court also declined Sunday to grant the spouses' expedited discovery bid, finding the motion to be based on "mere speculation."

Representatives and counsel for the parties did not immediately respond to Law360's requests for comment Tuesday.

The immigrant spouses are represented by Steven Andrew Brown and Justin Alberto Rivera of Reddy and Neumann PC and Brad Banias of Wasden Banias LLP.

The U.S. Citizenship and Immigration Service is represented by George M. Padis of the United States Attorney's Office.

The case is Shalini Kolluri et al. v. United States Citizenship and Immigration Service, case number 3:20-cv-02897, in the U.S. District Court for the Northern District of Texas.

Editing by Jay Jackson Jr.

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