District Court Issues Consent Order and Final Statement in Class Action Challenging Delay in Issuance of EADs

August 21, 2020

On August 21, 2020, the U.S. District Court for the Southern District of Ohio (Eastern Division) entered a Consent Order and Final Statement regarding the class action lawsuit (Subramanya v. USCIS, 7/22/20) challenging the delay in issuance of employment authorization documents (EADs) by USCIS following approval of Form I-765 applications.

The settlement has three main components that AILA members should be aware of:

• Sub-class 1, defined as the group of individuals who have received an I-765 approval notice, and the production of the EAD has been ordered but not completed.
  
  • There were 27,829 individuals in this group as of Thursday, August 20, 2020.
  • All EADs for this group will be produced and mailed by Friday, August 28, 2020.
• Sub-class 2, defined as the group of individuals who have received an I-765 approval notice, and the production of the EAD has not been ordered.
  
  • There are 17,736 individuals in this sub-class.
  • For the most part, the reason the EAD has not been ordered is that biometrics have not been captured. USCIS claims biometrics are required. This issue was not resolved by the Court. Biometrics for this sub-class have all been scheduled, and except for 18 individuals, will be completed by September 15, 2020.
  • For the remaining 18 individuals, the biometrics will be completed by September 22, 2020. The EADs for this sub-class will be produced and mailed within 7 business days of the capture of biometrics.
• USCIS agreed to post a notice on its website that for the interim period until the EAD cards can be produced, employees may use a Form I-797 Approval Notice, with a notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of an approval of a Form I-765 as a valid List C document for Form I-9. The notice was posted on August 19, 2020, and will be effective through December 1, 2020. All of the EAD cards should be produced and delivered before this date.

It is believed that there were approximately 30,000 EADs produced and mailed between the date the complaint was filed on July 22, 2020 and the date the class list was prepared on August 20, 2020.

Members should report any non-compliance with this order to 765approvals@porterwright.com.

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August 19, 2020

On August 19, as part of the consent decree to this litigation challenging the delayed production of EADs, USCIS announced that employees may use Form I-797, Notice of Action, with a notice date on or after 12/1/19 through 8/20/20 informing approval of an Application for Employment Authorization (Form I-765) as a list C #7 document for Form I-9 compliance until 12/1/20.

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August 7, 2020

The Court has extended the Temporary Restraining order (TRO) until August 24, 2020 to permit counsel for the Plaintiff and USCIS to negotiate the terms of a consent decree. In the meantime, Plaintiff’s counsel is aware that USCIS is working to eliminate the backlog for production of EADs. To assist counsel to monitor compliance with the TRO, please send an email with the information identified below to 765approvals@porterwright.com if the I-765 was approved before August 1, and the EAD has not been received or noted as mailed by case status on line after Tuesday, August 11, 2020.

• Applicant’s name
• Date of approval
• Receipt number
• Basis supporting I-765 (Part 2, Item 27)

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August 4, 2020

On August 3, 2020, the U.S. District Court for the Southern District of Ohio (Eastern Division) issued a Temporary Restraining Order (TRO) in the class action challenging the delay in issuance of the employment authorization document (EAD) following approval of the I-765 application. The critical points for the TRO were questions of irreparable and immediacy of harm. The Court found for the plaintiffs on both questions. While the ultimate question on certification of the class has been deferred, the Court granted temporary relief to the proposed class, defined as:

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.

The case has been scheduled for the next hearing on August 10, 2020, at which time the Court will hear evidence and consider the Motion for Preliminary Injunction and class certification. The TRO is valid only until the hearing on the preliminary injunction is completed. (Subramanya, et al., v. USCIS, et al., 8/3/20)

If you represent a member of this class, and your client’s EAD has not been produced and mailed, please consider submitting a declaration from your client, using this template. Please email a PDF copy of the declaration to 765approvals@porterwright.com. Please put “Declaration” in the subject line.

We are also interested in monitoring the agency’s progress issuing the EADs and separately request that lawyers representing class members send an email to 765receipts@porterwright.com, with “EAD Delays” in the subject, and include the following information:

1. Name of applicant
2. I-765 Receipt number
3. Date I-765 approved
4. Attorney’s contact information

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Cite as AILA Doc. No. 20080438.

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