Work Permits Adjudicated – Federal Judge Throws Out Suit Over USCIS Wait Times

October 14, 2022

This lawsuit accused the United States Immigration and Citizenship Services (USCIS) of taking too long when processing work permit applications, allegedly violating the Administrative Procedure Act (APA). However, the federal judge dismissed this suit because the USCIS had already decided on the cases involving the 95 visa holders who proposed the class action; thus, the claims became moot.

The US District Judge explained how the 95 visa holders filed this suit in November, citing their concern over the processing delays. However, their employment applications adjudicated by February, which made their legal challenge moot. The judge further stated that because the claims became moot and no exception applied, the suit lacked subject-matter jurisdiction, hence the dismissal.

This dismissal ended the proposed class action suit that claimed the plaintiffs had waited for as long as 13 months to obtain a work authorization decision, which they found unreasonable and in violation of the APA. Furthermore, the plaintiffs sought to have their applications immediately adjudicated. Finally, they demanded that the USCIS reinstate its previous processing deadline of 90 days.

The proposed class sought to cover applications not only for visa holders waiting for a decision on a green card application, but also for the spouses of foreign investors in US businesses. 

The complaint pointed out how the processing time for work permits nearly quadrupled since the 90-day processing requirement ended. The plaintiffs also complained about the agency allegedly restricting access to its customer service hotline. Furthermore, the USCIS allegedly required the spouses of those with investor visas to apply for and pay for their work permits. According to the plaintiffs, the Code of Federal Regulations categorizes spouses as automatically employable due to their E-2 visa status.

In January, the government requested that the judge dismiss the lawsuit. The government claimed that the visa holders wanted to skip ahead of the line unfairly. In addition, it claimed the holders did not consider the delays caused by the closures and hiring freezes caused by the pandemic. 

The judge did agree in March to pause the briefing on the plaintiffs’ class certification request until the outcome of the government’s motion to dismiss. However, both parties filed additional briefs in June once the government informed the judge that the USCIS had adjudicated all of the named plaintiff’s employment applications, thus making their claims moot.

The visa holders did not want the case dismissed and stated they were still pursuing claims for declaratory and injunctive relief.

However, the judge stated that the plaintiffs would have to claim that they were injured to seek declaratory and injunctive relief. In this case, past injuries alone are insufficient to establish standing, while their future claims are speculative.

The judge stated that, since the plaintiffs cannot show an imminent injury, they do not have the standing to introduce a forward-looking challenge. He also clarified that possible exceptions to mootness did not apply to the plaintiffs’ claims. In this case, exceptions did not apply because they are unlikely to reapply for work authorizations because their authorizations qualified for automatic renewal. Finally, the judge explained how they offered no evidence other than the visa holders’ “bare allegations” that the government picked off the specifically named plaintiffs.

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