This is a summary of the case of Subramanya v. USCIS which was filed today in federal court for the Southern District of Ohio. This is a class action & is about USCIS drastically slowing down the issuance of employment authorization cards to people already approved for them. 1
It was filed by Rob Cohen of the Porter Wright law firm in Columbus, Ohio and is a well-respected litigator of business immigration matters. The issue was recently highlighted by @crampell’s reporting in the Washington Post. 2
The case may be of interest not just to those who are waiting on EADs and green cards, but anyone with a substantially delayed benefit. Some of the counts in this case can be the basis of an individual case against USCIS. Suing is an option more people should consider. 3
The Plaintiff is seeking to compel USCIS to perform their legal duty to issue him his Employment Authorization Document (EAD) as well those of class members. 4
Approximately 75K are in the class and they need the EADs to keep their jobs. I-9 requirements don’t permit presentation of an approval notice – just the card. So Plaintiffs want the cards issued within 7 days of the court order. 5
Historically, USCIS has produced the cards within 48 hours after approval. Plaintiff filed her EAD on 12/23/19 & had her H-4 EAD approved on 4/7/2020. She had to stop working on 6/7 & her employer has notified her she’s being terminated if she can’t get a card by 8/9. 6
Defendants ended their contract with the card printer with no plan in place to avoid a disruption in card production. 7
“Defendants’ deliberate and intentional decision to significantly slow or stop providing EADs to aliens after approving their Applications for Employment Authorization is arbitrary, capricious and in violation of the laws and Constitution of the United States.” 8
The Court is authorized by the Administrative Procedure Act and the Mandamus Act to force USCIS to issue EADs to the Plaintiff and class members. 9
There is no legitimate government objective and USCIS either intends to harm class members of is showing deliberate indifference. This is a violation of the Due Process Clause of the 5th Amendment of the Constitution. 10
The proposed class: All aliens who reside in the United States and have submitted an Application for Employment Authorization that has been approved by USCIS, but who have not received an EAD. 11
Class certification is sought because they have very common questions of law and fact. 12
Count One – Administrative Procedure Act Section 706(1) – the ABA allows a court to compel agency action that has been unlawfully withheld or unreasonably delayed. Plaintiff has already been approved for the benefit so there has been final agency action. 13
Plaintiff seeks a mandatory order requiring USCIS to issue EADs in 7 days and awarding of attorney’s fees. 14
Count 2 – Writ of Mandamus – A court can compel Defendants to perform a duty owed to Plaintiffs and class members. Class members have a clear right to the EAD. USCIS has a duty to conclude matters within a reasonable time and Plaintiffs have no other remedy available. 15
Plaintiffs seek a writ of mandamus requiring Defendants to issues EADs immediately and in no event later than 7 days after the court’s order. 16
Count 3 – APA section 706(2) and Due Process Clause – The court shall hold unlawful and set aside any action that is arbitrary, capricious and an abuse of discretion, contrary to constitutional right and in excess of statutory authority. 17
Plaintiff and class have a liberty interest in the right to lawful employment and after approval of the I-765 application, they have a property interest in the EAD. 18
Prayer for relief – Temporary restraining order, injunction and writ of mandamus that require USCIS to issue EADs to Plaintiff and class immediately or within 7 days plus attorney fees and costs. 19
This is the 6th major class action lawsuit filed against USCIS in the past two weeks by the way. Kudos to Rob Cohen for taking this case on and I’ll be updating you as there is news to report. 20
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