Verma v. U.S. Citizenship & Immigration Servs.
| Decision Date | 18 December 2020 |
| Docket Number | Civil Action No. 20-3419 (RDM) |
| Parties | SHILPA VERMA, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Shilpa Verma, a lawful nonimmigrant national of India, brings this action under the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"), and the Mandamus Act, 28 U.S.C. § 1361, seeking to compel Defendant the United States Citizenship and Immigration Services ("USCIS") and its Associate Director, Defendant Tracy Renaud, to adjudicate her pending applications to extend her H-4 status and to issue and to deliver her a renewed Employment Authorization Document ("EAD"). See generally Dkt. 1 (Compl.); Dkt. 9-1 at 1 (Verma Decl. ¶¶ 1-2). Because Plaintiff "will lose work authorization imminently when her current [EAD] expires [on] December 19, 2020," she moves for a Temporary Restraining Order ("TRO") and Preliminary Injunction "directing Defendants to immediately provide her with evidence of continuing work authorization beyond December 19, 2020 for the duration of this proceeding." Dkt. 9 at 1-2.
For the reasons explained below, Plaintiff's Motion for a TRO and Preliminary Injunction, Dkt. 9, is DENIED.
This suit concerns three related immigration programs.
The first program is known as the H1-B visa program. Under it, nonimmigrant aliens may temporarily be admitted into the United States "to perform services . . . in a specialty occupation." 8 U.S.C. § 1101(a)(15)(H)(i)(b). To obtain an H-1B visa, a nonimmigrant's sponsoring employer must submit a Form I-129 to USCIS requesting issuance of a visa. Id. § 1184(c). If approved, an H-1B visa is valid for an initial period of up to three years and can be extended for an additional three years. Id. § 1184(g)(4); 8 C.F.R. §§ 214.2(h)(9)(iii)(A)(1), (h)(15)(ii)(B)(1). An applicant who has a specified employment-based petition for immigrant status pending may receive an extension of H-1B status beyond the six-year maximum. See American Competitiveness in the Twenty-First Century Act, Pub. L. No. 106-313, §§ 104(c), 106(a) (2000), Pub. L. No. 107-273, § 11030A (2002) (codified at 8 U.S.C. § 1184 note).
The second program is known as the H-4 visa program. Under it, the spouse and minor children of an H-1B visa holder may be admitted to the United States along with the H-1B visa holder. 8 U.S.C. § 1101(a)(15)(H). To obtain an H-4 visa or to apply for an extension of an existing H-4 visa, an eligible applicant must submit to USCIS a Form I-539. If approved, the H-4 visa is subject to the same period of admission as the H-1B visa held by the H-4 visa holder's spouse or parent. 8 C.F.R. § 214.2(h)(9)(iv).
The third program is known as the EAD program. Unlike nonimmigrants with an H-1B visa, "[n]onimmigrants with H-4 status are approved to live, but not necessarily work, in the United States." Muvvala v. Wolf, No. 20-cv-2423, 2020 WL 5748104, at *1 (D.D.C. Sept. 25, 2020) (citing Save Jobs USA v. U.S. Dep't of Homeland Sec., 105 F. Supp. 3d 108, 111 (D.D.C.2015)). H-4 visa holders who are not approved to work may, however, apply for temporary employment authorization—that is, an EAD. See 8 C.F.R. §§ 214.2(h)(9)(iv), 274a.12(c)(26). As relevant here, "an eligible H-4 visa holder" may do so by filing "a complete Form I-765 . . . accompanied by 'documentary evidence establishing eligibility, including evidence of the spousal relationship' between the H-4 visa holder and the H-1B visa holder, evidence that 'the principal H-1B [holder] is the beneficiary' of an application for legal permanent residence, and evidence that the H-1B beneficiary and the H-4 visa holder are current in their respective immigration statuses." Nibber v. U.S. Citizenship and Immigr. Servs., No. 20-cv-3207, 2020 WL 7360215, at *1 (D.D.C. Dec. 15, 2020) (quoting 8 C.F.R. § 214.2(h)(9)(iv)).
In March 2019, USCIS began requiring "all applicants submitting an I-539 application for H-4 status to appear at the application support center closest to the applicant's primary residence and provide biometric information such as fingerprints, a photograph, or a signature." Muvvala, 2020 WL 5748104, at *1 (citing 8 C.F.R. § 103.2(b)(9)). According to an agency representative, "[t]he long-term agency objective is to incorporate biometrics . . . across most or all form types, with the Form I-539 being the first to undergo the change." Dkt. 12-1 at 2 (Rosales Decl. ¶ 6). That representative further notes that "Forms I-539 and I-765 are [adjudicated] on a first-in-first-out basis"—meaning that the applications that have been pending the longest are adjudicated first. Id. (Rosales Decl. ¶ 4).
Plaintiff Shilpa Verma, a citizen of India, has resided in the United States since January 31, 2009. Dkt. 9-1 at 1 (Verma Decl. ¶¶ 1, 3). She is currently employed as "the HR Technology Workday Learning Function Lead for Otis Elevator Company," in which capacity she helps implement online human resources management and training tools. Id. at 3 (Verma Decl. ¶ 14). Plaintiff's spouse, Rishi Verma, is currently an H-1B visa holder, employed bySaviynt, Inc. Id. at 2 (Verma Decl. ¶ 2). According to Plaintiff, her husband's immigration status renders her eligible for H-4 status, employment authorization, and eventually, lawful permanent residence as a derivative beneficiary. Id. at 1-2 (Verma Decl. ¶¶ 3-5).
Plaintiff was first "issued work authorization pursuant to [her] H-4 status" in 2015. Id. at 2 (Verma Decl. ¶ 6). "Upon becoming eligible," she "applied for and received an EAD authorizing [her] to work." Id. (Verma Decl. ¶ 7). That EAD was "valid from August 26, 2015 to September 5, 2017," after which Plaintiff sought and received two renewals of her EAD, extending the EAD to December 19, 2020. Id. Plaintiff became eligible to file an additional renewal application on June 23, 2020—six months prior to the expiration of her H-4 and EAD status. Id. (Verma Decl. ¶¶ 10-11).1
Although she was eligible to file in late June, Plaintiff waited to file her applications to extend her H-4 status and renew her EAD until August 10, 2020. Id. (Verma Decl. ¶¶ 8-9).USCIS subsequently scheduled Plaintiff's biometric examination for December 8, 2020. Id. at 5 (Verma Decl. ¶ 25); see also Dkt. 12-1 at 3 (Rosales Decl. ¶ 9). Plaintiff attended the examination, and her biometrics were accordingly captured. Dkt. 9-1 at 5 (Verma Decl. ¶ 25); see also Dkt. 12-1 at 3 (Rosales Decl. ¶ 9). Plaintiff's H-4 and EAD applications are now pending adjudication at USCIS's California Service Center ("CSC"). Dkt. 12-1 at 1 (Rosales Decl. ¶ 2). There is nothing left for Plaintiff to do but wait.
That wait is at issue here. According to Dina Rosales, the Supervisory Immigration Services Officer at the CSC responsible for overseeing the adjudication of applications like Plaintiff's, as of December 15, 2020, "the average time between filing and adjudication of H-4 (Form I-539) applications at the C[SC] is approximately 17 to 22 months," id. at 3 (Rosales Decl. ¶ 10); see also Dkt. 12-2 at 1 (Lotspeich Decl. ¶ 4), while, "the average time between the filing and adjudication of standalone H-4 Employment Authorization Document (Form I-765) applications at the C[SC] is approximately 13 to 17 months," Dkt. 12-1 at 3 (Rosales Decl. ¶ 11). There are roughly 750 applications in the queue ahead of Plaintiff's, which, according to Rosales, means that "the remaining processing time [for Plaintiff's applications] is approximately 6 months" from December 15, 2020. Id. (Rosales Decl. ¶¶ 13-14).
In the meantime, Plaintiff will be barred from working. According to Plaintiff, her absence "will create a tremendous amount of pressure on other team members and [her] employer," who are currently engaged in "a major data migration project for [Otis]" that Plaintiff "lead[s]" and which will [launch] in mid-December." Dkt. 9-1 at 3 (Verma Decl. ¶ 15); see also Dkt. 15-1 at 1-2 (Williams-Rivera Decl. ¶¶ 3-6). Not only will "[t]he interruption of [Plaintiff's] work . . . have serious negative consequences to [her] employer and [her] career," it will "risk [her] losing [her] job" and "salary of $97,500 per year." Dkt. 9-1 at 3-4 (Verma Decl.¶¶ 15-17); see also Dkt. 15-1 at 2-3 (Williams-Rivera Decl. ¶¶ 6-7, 9-10, 12) (Plaintiff's employer stating that Plaintiff "will be replaced and result into [t]ermination" on January 5, 2021 "if she is unable to present a new EAD card"). "The delay in renewing [Plaintiff's] timely filed EAD renewal will also cause [her] to lose [her] employer-provided healthcare coverage" on which, Plaintiff explains, her "special needs son"—recently diagnosed with Sensory Integration Process Disorder and Communication Disorder—"is . . . dependent." Dkt. 9-1 at 4 (Verma Decl. ¶ 23). Plaintiff appears to concede, however, that her son will be able to avail himself of his father's employer's health insurance, which, while roughly $430 more expensive per month than Plaintiff's, will nevertheless allow Plaintiff's son "to continue the ongoing therapeutic care that [he] has been undertaking." Id. at 4-5 (Verma Decl. ¶ 24).
On November 24, 2020, dissatisfied with the pace at which USCIS was moving and facing the looming expiration of her current H-4 and EAD authorizations, Plaintiff filed suit in this Court, alleging that USCIS's ongoing delay in adjudicating her applications is unlawful. See generally Dkt. 1 (Compl.). As a remedy, Plaintiff seeks injunctive relief "[c]ompel[ling] Defendants to adjudicate [her] I-539 and I-765 applications as soon as possible and [in any event] before December 19, 2020," and "[c]ompel[ling] Defendants to issue an EAD and [to] deliver the EAD to [Plaintiff] as soon as possible and [in any event] before December 19, 2020." Id. at 12-13 (Prayer for Relief). Plaintiff also seeks an "[a]ward . . . [of] reasonable costs...
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