Law360 (August 3, 2020, 10:42 PM EDT) -- U.S. Citizenship and Immigration Service must print work permit cards for foreign citizens with approval to work in the country within seven days, an Ohio federal judge said while granting a temporary restraining order to a putative class of prospective workers Monday.
U.S. District Judge Algenon L. Marbley said that just because no statute dictates exactly when the USCIS should provide an employment authorization permit does not mean the agency can take as long as it wants. She pointed to harms caused by the lack of income available for named plaintiffs, some of whom are stuck in homeless shelters, unable to work and vulnerable to the COVID-19 virus.
"The inability to provide for oneself and one's family members constitutes an immediate threat of harm for many of the named and putative class plaintiffs, since those individuals are left to rely on the mercy and kindness of others for basic necessities such as shelter and food," the judge said.
The named plaintiffs said in their July complaint that they had been waiting months to receive their printed work permit cards from the federal immigration agency, threatening the jobs of thousands of foreign workers.
The suit claims that USCIS is arbitrarily refusing to print work permit cards after approving them, leaving visa-holders unable to show their U.S. employers that they are authorized to work in the U.S.
The suit also argues that USCIS is depriving foreign workers of the work permits they are legally owed, in violation of their constitutional rights, and alleges that the agency is sitting on a backlog of at least 75,000 unprinted employment authorization documents, or EADs.
"By delaying or refusing to provide EADs to plaintiffs and class members, defendants have abused their power in an egregious and outrageous manner, without any reasonable justification in the service of a legitimate governmental objective, and with either an intention to harm plaintiff and class members or deliberate indifference," the complaint says.
The ombudsman for the agency confirmed in an alert on Wednesday that USCIS had "reduced its capacity to print secure documents," such as work permits and permanent residency cards, after ending its contract with a third-party company that previously printed the cards.
According to the alert, USCIS had planned to hire federal employees to take over the printing, but that effort has stalled due to the agency's projected financial troubles. USCIS, which is primarily fee-funded, has projected a $1.2 billion budget shortfall as a result of declining immigration applications during the pandemic and is requesting a bailout from Congress.
The plaintiffs had pointed out in their complaint USCIS has historically printed and mailed EADs within 48 hours of their approval. But, in their response, the USCIS argued that it is not legally required to provide the EADs within 48 hours and that, as a result, the plaintiffs can't establish injury or causation for their slow arrival.
"The fact that there is no statute or regulation setting a timeline for action does not mean that the agency retains unfettered discretion to issue EADs at any time they wish," the judge responded Monday. "In fact, courts reviewing similar claims have determined that the absence of a timeline in a statute or regulation means that the court retains jurisdiction to decide whether the delay was unreasonable."
Last month's lawsuit was brought on behalf of Ranjitha Subramanya, an Indian citizen who came to the U.S. on an H-1B specialty occupation visa to work at Nationwide Insurance. She later changed her status to an H-4 visa, reserved for spouses of H-1B holders, through her husband's H-1B visa, which is valid through June 2023, according to the lawsuit.
According to her lawyer, Robert H. Cohen of Porter Wright Morris & Arthur LLP, her husband, also an Indian citizen, had an approved green card petition, but the couple was waiting in a years-long backlog for a green card to become available.
Subramanya applied to extend her H-4 work permit in December, and USCIS approved the request in April.
However, despite multiple calls and requests to the agency, Subramanya still didn't have her printed card by June, when her previous work permit expired. She was forced to leave her job then, and her employer has told her that she will be terminated permanently if she does not have her work permit by August.
According to Judge Marbley's ruling, Ranjitha Subramanya received the permit after filing the lawsuit, spurring USCIS to argue that the suit is now moot. The judge rejected this argument, noting that the case is subject to a handful of exceptions pertaining to mootness.
"Any named plaintiff's EAD will likely be issued before this court can certify a class and because it is certain that other putative class members are suffering the same injury," she said. "Plaintiffs have submitted a large number of declarations of potential class members and at the hearing, this court heard testimony from putative class members facing this same issue."
A preliminary injunction hearing will be held on Aug. 10.
Subramanya is represented by Robert H. Cohen, Caroline H. Gentry and David P. Shouvlin of Porter Wright Morris & Arthur LLP.
The government is represented by Christopher R. Yates of the United States Attorney's Office.
The case is Subramanya v. United States Citizenship and Immigration Services et al, case number 2:20-cv-03707, in the U.S. District Court for the Southern District of Ohio.
--Additional reporting by Suzanne Monyak. Editing by Peter Rozovsky.
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