Even with Biden in power, immigrant spouses in the US face delays and obstacles for work permits

Listening to Behind the Numbers, a digital media and marketing podcast was one of Swara’s (name changed) favourite routines on her way to work. Swara is a senior marketing professional in San Francisco with a masters degree from a US university. In July 2020, she was offered a new job with good pay and benefits.

A couple of days into her new position, she had to stop working as her work permit renewal was not adjudicated in time by United States Citizenship and Immigration Services. She filed for her renewal in May 2020 and has not received a decision as of February 2021. Swara is on an H-4 visa as the spouse of an H-1B visa holder.

For her work permit extension, the current processing time for the renewal at the California Service Center is currently up to 14 months. For some it has gone up to 24 months for a 36-month visa.

Swara feels helpless because there is nothing she can do to speed up the process. “I and my husband filed together in May 2020 and he received his in June 2020 with a validity of 36 months. This means that since I am a dependent visa holder, even if USCIS processes mine in the upcoming months, my visa validity will end at the same time as my husband. I have already lost 7 months of work authorization even after filing five months before my prior validity expiring,” she said.

Previously, an H-1B holder, their spouse and children could all file for extension together and their applications would be processed together considering that the same set of documents needed to be verified.

In March 2019, United States Citizenship and Immigration Services announced that they would now require people in the United States changing or extending their status to attend a biometric appointment before their cases could be adjudicated. This requirement separated adjudication processes and timelines of H-1B holders and their dependents.

Wait times

Persons filing this form are largely students (F/M visas), exchange visitors (J-1 visas), spouses and children (H-4 Visas) of H-1B workers. For spouses and children of H-1B workers, their adjudication processing time directly affects their work permit and ability to keep their jobs. While the new step has not affected other visa categories substantially, H-4 visa holders continue to wait for adjudications. Based on State Department statistics in 2019, a large percentage of H-4 holders are from India due to the green card backlog.

As a consequence of the new requirement, processing times began to slowly climb up. According to the USCIS website, processing time of 3.3 months in 2018, 4 months in 2019 and 5.5 months in 2020. However, individual processing times in each service center are indicating varied timelines inconsistent with the overall times.

All persons filing this form would have already given biometrics while obtaining a visa in an overseas consulate and given biometrics again at the port of entry at least once, perhaps multiple times in many cases. It is important to note that when Covid-19 hit, USCIS waived biometric requirements for other categories of people recognising the impact of job loss but have refused to do so for spouses of H-1B visa holders.

While USCIS continues to maintain that this new biometric requirement was purely a procedural change to ensure the integrity of the immigration system, there is plenty of evidence that it was a part of former US President Donald Trump administration’s attempts put obstacles in the way of the spouses of H-1B holders who want or need to work.

Trump’s agenda

US President Barack Obama’s administration had in 2015 permitted spouses of H-1B holders to apply for work authorisation, with more than 90,000 immigrant depedents – a huge number of whom were women from India – taking advantage of this opening. From the very start of Trump’s administration, the plan to rescind these work permits was a priority.

The administration first attempted to do this through rule changes, but was unable to get a greenlight from the Office of Management and Budget, a regulatory gatekeeper. Instead, it looked at other ways including bureaucratic hurdles to make H-4 work permits harder to come by.

The resemblance of Trump’s immigration agenda to the proposed priorities put forward by the Federation of American Immigration Reform in 2017 is unmistakeable. FAIR is a designated hate group by the Southern Poverty Law Center, which has highlighted the group’s ties to white supremacist groups and eugenicists.

Alongside the Trump administration agenda was an effort by Save Jobs USA, a group of American technology workers, which had legally challenged the decision to provide work permits to immigrant spouses soon after it was brought in by Obama in 2015. Save Jobs USA had argued that the work permits did “irreperable harm to American workers” by permitting immigrant spouses to pursue employment.

While Trump was in power, this lawsuit was mostly kept on hold in part because the administration had made it clear that it intended to do away with the work permits directly. Save Jobs USA however, continued to push courts to act independently of the executive, and despite at least one court finding against it.

The matter remains in court, but US President Joe Biden gave immigrant spouses some relief in January 2020 when he signed an executive order withdrawing the rule that would have struck down the work permits.

Court cases

Still, even without the spectre of work permits being struck down, if the current processing times are a testament of what the Trump administration intended to inflict on the H-4 visa holders, they have succeeded. Sarah Pierce and Jessica Bolter in Dismantling and Reconstructing the US Immigration system point out “while many of the [Trump] administration’s changes appear small and technical, in combination they promise much larger impacts on the US immigration system.” The layered changes implemented for many aspects of legal immigration are hard to track and challenge.

The United States Citizenship and Immigration is currently defending several lawsuits across the country for intentional delay for spousal work permits. Petitioners claiming to have exhausted all means and ways to contact the agency are pointing to their job loss, medical needs, emergencies, financial loss, essential worker status, mental health or expiration of their drivers licenses tied to their H-4 visa as a reason to go to the federal courts as a last resort.

Based on responses filed by USCIS in courts, the agency feels that while adjudications might affect H-4’s ability to work, purely economic harm does not affect human health or welfare. Perhaps, the agency is only able to look at it unidimensionally and cannot relate mental health, vulnerability, financial dependence and ability to drive as aspects of human health and welfare.

In Neema Vs USCIS, the USCIS Section Chief for the Nebraska Service Center told the court that, due to the new biometric rule, USCIS looks at an application only after an applicant has provided their biometrics. She further stated that in her capacity overseeing H-4 adjudications, she is not aware of a process that tracks the timelines between application filing, biometrics and adjudications handled by staff at USCIS. The revelations are shocking considering that the expectation from a federal agency processing such a high volume of applications is to at least have a quality control and tracking process.

First in, first out?

USCIS in multiple lawsuits has stated that the delays are being caused by Covid-related closures of biometrics centres and because the agency follows a “first in and first out” or FIFO process in adjudication. In Gona Vs USCIS, contrary evidence has been presented indicating the absence of a standardised process with varied timelines for people with same filing dates as well as biometric dates.

The complaint states “if the agency followed FIFO based on biometric completion date one would expect to see the amount of time a plaintiff spends waiting for a decision post biometrics to be relatively standard. However, when sorted by time between biometric completion and adjudication the data shows completed California cases range from 47 days to 209 days.”

USCIS has stated in their responses that the sample size is not representative of their overall processing procedures. Nevertheless, they have not shared any evidence in support of their “first in and first out” process in the time frame that is the context of legal review.

A similar lawsuit in California highlights that the agency does not have a binding requirement or need for new biometrics in the first place prior for adjudicating H-4 extensions and they have had the authority to re-use previously submitted biometrics all along. The complaint provides proof of USCIS reusing biometrics for some on the same visa even as their consequential delays have been blamed on inability to gather new biometrics for others.

‘No good explanations’

USCIS also states that they do not have the information technology capability to submit fingerprints collected by the Department Of State or US Customs and Border Protection to the Federal Bureau of Investigation. And that they cannot reuse biometrics that were collected for a different purpose by a criminal justice agency or a non-criminal justice agency.

That brings us to an important question: How did USCIS waive biometrics for other visa categories because of Covid-19 but did not do so for this specific category alone? Also, how did agency deduce that this category of visa holders are a bigger national security threat than for example their spouses on H-1Bs as they require only fingerprints from the spouses?

Jonathan Wasden of Wasden Banias LLC, counsel representing spouses on H-4 points out

“Based on USCIS personnel levels, the number of adjudicators is at a historic high while volume of work is very low, so there is no good explanation for cases taking so long to be adjudicated. If they can adjudicate other visas in 2 months, what takes them 24 months to do a H-4 adjudication? For example, Nebraska Service Center had 57 full time employees doing this specific adjudication in 2018. By January 2020 that number increased to 132 employees. By the agency data, each application in this category takes 30 minutes and each full time employee works 2000 hours annually. Mathematically, Nebraska Service Center alone can adjudicate the nation’s entire load of applications in this category in 6 months. It is not the question of do they have the manpower, do they have the intention?”

The evidence in support of lack of adjudication standards, consistency in processing times and sheer inability to maintain performance standards for a federal agency like United States Citizenship and Immigration Services is appalling. Even more unfortunate is the fact that the agency has managed to pull people out of the workforce and traumatised them with unreasonable time frames even as everyone is battling a pandemic.

Many who watched NASA’s Perseverance Rover landing celebrated when a young woman with a bindi on her forehead announced “touchdown confirmed.” As America and the South Asian community cheered Dr Swati Mohan, many celebrated her as a true manifestation of the American dream.

Mohan, like many Indian women living in the US today, was born in India and immigrated to the US as a child. If Mohan were to begin her immigration journey today, she would be waiting a long time for her dependent visa like any other H-4 visa holder.

Tejeswi Pratima Dodda is a journalist and co-founder of Factly.