)

and )
)
LAURA B. ZUCHOWSKI, Director, Vermont Service )
Center, U.S. Citizenship and Immigration Services, U.S. )
Department of Homeland Security, in her official )
capacity, as well as her successors and assigns, )
c/o Office of the Chief Counsel, )
20 Massachusetts Avenue, N.W. )
Room 4210, )
Washington, D.C. 20529, )
)
Defendants. )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR WRIT OF

MANDAMUS

Plaintiffs (“Plaintiff-wife”) and (“Plaintiff-husband”),

through their undersigned counsel, allege as follows:

I. INTRODUCTION

1. This civil action seeks to compel unreasonably delayed government action on the adjudication

of an I-765 Application for Employment Authorization (“EAD application”) and the

production and delivery of plaintiff-wife’s Form I-766 Employment Authorization Document

(“EAD”) card.

2. Plaintiff-wife is legally present in the U.S. in H-4 status and properly filed her Form I-765

EAD application on June 05, 2020. See I-797C, Notice of Action (“Receipt Notice”), Ex. A.

3. Plaintiff-husband is a temporary worker present in the United States in H-1B status. Plaintiffs

reside at . See Declarations of

, Exhibits B and C.

4. Plaintiff-husband works at , in . See

Exhibits B and C.
5. Plaintiff-wife worked for at

. See Exhibits B and C, and Employer Letter, Exhibit H.

6. Plaintiffs both value their employment in Nebraska and want to continue working for their

employers. Plaintiff-wife is employed by as a

, and the expiration of her Employment Authorization Document (“EAD card”)

was on September 30, 2020. See Exhibits B, C, H, and Employment Authorization Card,

Exhibit D.

7. U.S. immigration law provides for temporary employment authorization for foreign nationals

who are the H-4 dependents of some H-1B workers. See 8 C.F.R. §§ 214.2, 274a (“H-4 EAD

Rule”)

8. In order to obtain employment authorization as an “H-4 spouse” of a H-1B worker, Plaintiff-

wife was required to send a completed and signed Form I-765 Application for Employment

Authorization to Defendant USCIS. See Instructions for Application for Employment

Authorization (excerpts), Exhibit E.

9. Plaintiff-wife properly filed her Form I-765 Application for Employment Authorization under

eligibility category “(c)(26)” which is for H-4 applicants. See Exhibit A and D.

10. Plaintiff-wife was terminated from her employment as a with

, because her I-765 Application for Employment Authorization was not

approved in time for her to receive her physical EAD card (Form I-766 Employment

Authorization Document) in the mail by September 30, 2020. See Exhibits B, C, and H.

11. The Administrative Procedure Act (“APA”) requires that administrative agencies conclude

matters presented to them “within a reasonable time.” 5 U.S.C. § 555(b).

12. This action seeks injunctive and mandamus relief to compel Defendant USCIS to adjudicate

plaintiff-wife’s pending Form I-539 Extension application and Form I-765 EAD application

and send her Form I-766 EAD card to her, so that she can continue seeking meaningful

employment opportunities.

13. The APA provides that a person adversely affected by agency action is entitled to judicial

review. See 5 U.S.C. § 702. A reviewing court “shall compel agency action unlawfully

withheld or unreasonably delayed.” 5 U.S.C. § 706(1).

14. Plaintiffs contacted Defendant USCIS on October 20, 2020 to request expedited processing of

Plaintiff-wife’s pending Form I-539 H-4 Extension application. The expedite request have

was denied. See Exhibit I.

15. Plaintiffs contacted USCIS because they learned through media reports that Defendant USCIS

had stopped producing I-766 EAD cards. See Exhibits B and C.

16. The Citizenship and Immigration Services Ombudsman released an update on July 21, 2020,

addressing delays in the production of I-766 EAD cards. The CIS Ombudsman wrote:

In June 2020, U.S. Citizenship and Immigration Services (USCIS) reduced its
capacity to print secure documents, such as Lawful Permanent Resident (LPR) and
Employment Authorization Documents, after it ended a contract with an outside
company responsible for printing these cards. According to USCIS, it intended to
hire federal employees to replace the contractors; however, its financial situation
resulted in a hiring freeze that has impacted the printing of these secure cards.

Stakeholders are submitting requests for case assistance to the Office of the
Citizenship and Immigration Services Ombudsman (Ombudsman), confirming
there are delays in receiving these secure documents. USCIS expects these
backlogs will continue for the foreseeable future. Should there be a furlough of
USCIS employees on August 3, 2020, card production backlogs will likely
increase.

See CIS Ombudsman Stakeholder Announcement, Exhibit F.

17. As a result, Plaintiff-wife suffers immediate and future harm in the form of distress, and

professional disruption, since the termination from her employment on September 30,

2020. See Exhibits B, C, D.

18. Plaintiffs seek an order from this Honorable Court directing Defendants to complete all

necessary steps, including the adjudication of the plaintiff-wife’s pending I-539 H-4

extension application, to process Plaintiff-wife’s I-765 EAD Application within fourteen

(14) days from an Order of this Court.

19. Plaintiffs also seek an order from this Honorable Court directing Defendants to produce

Plaintiff-wife’s I-766 EAD card and to deliver it to her within twenty-one (21) days from

an Order of this Court.

20. Plaintiffs are entitled to attorneys’ fees and costs pursuant to the Equal Access to Justice

Act (“EAJA”), 5 U.S.C. § 504 and 28 U.S.C. § 2412(d), et seq.

II. JURISDICTION

21. This Honorable Court has subject matter jurisdiction over the claims alleged in this action

under: (1) 28 U.S.C. § 1331 (federal question jurisdiction), because Plaintiffs’ claims arise

under the laws of the United States, including 5 U.S.C. §§ 555 and 701, et seq. (“APA”),

8 U.S.C. § 1101, et seq. (“INA”) (including 8 U.S.C. § 1182). This court may grant relief

in this action under 5 U.S.C. §§ 553, et seq. and §§ 701 et seq.; and 28 U.S.C. §§ 2201, et

seq. (Declaratory Judgment Act).

22. This Honorable Court is not deprived of jurisdiction by 8 U.S.C. § 1252, INA § 242. See

e.g., Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (finding that INA § 242 does not bar a

claim challenging agency authority that does not implicate discretion). Generally, a

narrower construction of jurisdiction-stripping provision is favored over the broader one,

 as reflected by the “familiar principle of statutory construction: the presumption favoring

judicial review of administrative action.” Kucana v. Holder, 130 U.S. 827, 839

(2010). Absent “clear and convincing evidence” of congressional intent specifically to

eliminate review of certain administrative actions, the above-cited principles of statutory

construction support a narrow reading of the jurisdiction-stripping language of 8 U.S.C. §

1252(a)(2)(B)(ii). Id., at 839. See also, Geneme v. Holder, 935 F.Supp.2d 184, 192

(D.D.C. 2013) (discussing Kucana’s citation to a presumption favoring judicial review of

administrative action when statute does not specify discretion.)

23. 8 U.S.C. § 1252(a)(5), INA § 242(a)(5), provides that “a petition for review filed with an

appropriate court of appeals in accordance with this section, shall be the sole and exclusive

means for judicial review of an order of removal entered or issued under any provision of

this Act[.]” As the present action is not an action to review a removal order but an action

challenging an unreasonable delay in the processing of plaintiff-wife’s I-539 application

and I-765 EAD application, this Honorable Court retains original jurisdiction under the

APA and 28 U.S.C. § 1331, as well as for declaratory relief under 28 U.S.C. § 2201.

III. VENUE

24. Venue is properly with this Court, pursuant to 28 U.S.C. § 1391(e)(1), because:

a. Defendant Chad Wolf is the Acting Secretary of Homeland Security and is an

officer of the Department of Homeland Security and is responsible for the operation

of the DHS and its sub-agency USCIS, which are both headquartered in the District

of Columbia. Defendant Wolf performs a significant amount of his official duties

in the District of Columbia and resides, for purposes of venue, within the District

of Columbia;
 the DHS, which includes sub-agency USCIS, and with implementing the INA. He is

further authorized to delegate certain powers and authority to subordinate employees of the

USCIS, which is an agency within the DHS. DHS is headquartered at 245 Murray Lane,

S.W., Washington, DC 20598.

28. William P. Barr is the Attorney General of the United States and this action is brought

against him in his official capacity only, as well as his successors and assigns. He is

charged with certain functions involved in the implementation of the INA, and is further

authorized to delegate such powers and authority to subordinate employees of the FBI,

which is an agency within the U.S. Department of Justice. The DOJ is headquartered at

950 Pennsylvania Avenue, N.W., Washington, DC 20530.

29. Kenneth T. Cuccinelli is the Acting Director of the USCIS, who is named herein only in

his official capacity, as well as his successors and assigns. He is generally charged with

the implementation of the INA, and is further authorized to delegate certain powers and

authority to subordinate employees of the USCIS. USCIS is specifically assigned the

adjudication of I-539 and I-765 EAD applications. USCIS is headquartered at 20

Massachusetts Avenue, N.W., Washington, DC 20529.

30. Laura B. Zuchowski is the Director of the Vermont Service Center (“VSC”) of the USCIS,

who is named herein only in her official capacity, as well as her successors and

assigns. She is charged with overseeing operations of the VSC, which include the

adjudication of I-539 and I-765 EAD applications. She is further authorized to delegate

certain powers and authority to subordinate employees of the USCIS. USCIS is

headquartered at 20 Massachusetts Avenue, N.W., Washington, DC 20529.

 V. STATEMENT OF FACTS

A. Process to Gain Work Authorization in the U.S.

31. Some aliens who are married to a H-1B nonimmigrant and who are lawfully inside the U.S.

in H-4 status may apply for temporary employment authorization. See Employment

Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284 (Feb. 25, 2015)

(codified at 8 C.F.R. §§ 214.2, 274a (“H-4 EAD Rule”)

32. Aliens who qualify under the H-4 EAD Rule may file a Form I-765 application for

employment authorization. See Exhibit E.

33. If the I-765 applicant qualifies by listing a correct EAD eligibility category, Defendant

USCIS routinely issues an I-765 approval to the applicant and causes a physical I-766 EAD

card to be produced and mailed to the applicant. See Exhibit E.

34. Plaintiff-wife properly filed her I-765 application on June 05, 2020, which is about four

months in advance of her I-766 EAD card expiration date of September 30, 2020, with

Defendant USCIS under “Eligibility Category: C26.” See Exhibit A.

B. Delays in USCIS EAD Card Production

35. Over the past several months, there have been reports that Defendant USCIS was delaying

or had ceased production of lawful permanent resident cards and EAD cards. See Exhibits

B, C, and F.

36. The Citizenship and Immigration Services Ombudsman (part of DHS), has confirmed that

Defendant USCIS has experienced a delay or halt in the printing of I-766 EAD cards due

to its decision to end a contract with a printing vendor and from layoffs or furloughs of

USCIS staff. See Exhibit F.

37. Due to delay and Defendant USCIS’s actions noted above, plaintiffs have a legitimate fear

that plaintiff-wife will not receive her Form I-766 EAD card in time to continue looking

for meaningful employment opportunities. See Exhibits B-F.

39. Plaintiff-wife has completed all steps required regarding her I-765 EAD application. See

Exhibits A-C, and E.

C. Exhaustion of Administrative Remedies

40. Plaintiff-wife, on October 20, 2020 contacted USCIS to request expedited processing of

her pending Form I-539 H-4 Extension application. See Exhibit I.

41. Plaintiffs request for expedited processing of her Form I-539 H-4 Extension application

has been denied. See Exhibit I

42. There are no further administrative remedies available to Plaintiffs to redress their

grievances described herein.

VI. CLAIMS FOR RELIEF

Count I - Violation by DHS/USCIS of 5 U.S.C. § 555(b)

43. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.

44. Pursuant to the APA, a person adversely affected by agency action in entitled to judicial

review. See 5 U.S.C. § 702. Agency action includes a failure to act. See 5 U.S.C. §

551(13).

45. The APA requires agencies to conclude matters presented to them “within a reasonable

time.” 5 U.S.C. § 555(b).

46. A court may “compel agency action unlawfully withheld or unreasonably delayed.” 5

U.S.C. § 706(1).
47. Under the APA, USCIS has a mandatory, non-discretionary duty to complete the

adjudication of plaintiff-wife’s I-539 and I-765 EAD applications, and to do so within a

reasonable time.

48. Under the INA and DHS regulations, DHS, through its sub-agency USCIS, has a

mandatory, non-discretionary duty to adjudicate Plaintiff-wife’s I-539 and I-765 EAD

applications. See Exhibit E and 8 C.F.R. § 103.2(b)(19) (requiring a written decision on

petitions and applications).

49. Plaintiffs challenge only the reasonableness of Defendants’ delay or inaction in the

adjudications of the subject I-539 and I-765 EAD applications, not the grant or denial of

these filings.

50. Under the circumstances where plaintiff-wife’s current employment authorization expired

on September 30, 2020, where she was terminated from employment on September 30,

2020, and where her expedite request for the processing of her Form I-539 H-4 Extension

application has been denied, and where she has completed her biometrics appointment on

October 09, 2020, the current processing times are unreasonable. See Exhibit G, Biometric

Completion Notification.

51. Plaintiffs have exhausted their administrative remedies.

52. USCIS’ unreasonable and unlawful delays in completing the adjudication of the subject I-

539 and I-765 EAD applications have caused, and will cause, Plaintiffs ongoing and

substantial injury in the form of termination of employment, and mental distress, since the

I-766 EAD card was not produced by September 30, 2020.

Count II - Mandamus Action to Compel Officers of DHS/USCIS to Perform their Duty

53. Plaintiffs incorporate all preceding paragraphs as if fully set forth herein.
54. Plaintiffs assert claims for mandamus relief under 28 U.S.C. § 1361 which provides the

authority to compel an agency to perform a duty owed to them.

55. DHS, through its sub-agency USCIS, has a mandatory, non-discretionary duty to

adjudicate plaintiff-wife’s I-539 and I-765 EAD applications. See Exhibit E and 8 C.F.R.

§ 103.2(b)(19) (requiring a written decision on petitions and applications).

56. USCIS has a mandatory, ministerial, non-discretionary duty to complete the adjudications

of plaintiff-wife’s I-539 and I-765 EAD applications within a reasonable time.

57. Plaintiffs challenge only the reasonableness of defendants’ delay or inaction in the

adjudications of the subject I-539 and I-765 EAD applications, not the grant or denial of

these filings.

58. Plaintiffs have no other adequate remedy to compel the agency to perform its duties, since

they have contacted Defendant USCIS without results or indication of when adjudication

of Plaintiff-wife’s I-539 and I-765 EAD applications might be forthcoming.

59. Plaintiffs ask the Court to compel DHS Acting Secretary Chad Wolf, USCIS Acting

Director Kenneth T. Cuccinelli, and Vermont Service Center Director Laura B. Zuchowski,

to perform their duties and complete the adjudication of Plaintiff-wife’s I-539 and I-765

EAD applications.

60. USCIS’ unreasonable and unlawful delays in completing the adjudication of the subject I-

539 and I-765 EAD applications have caused, and will cause, Plaintiffs ongoing and

substantial injury in the form of termination of employment, and mental distress, since the

I-766 EAD card was not produced by September 30, 2020.

 VII. INJURIES TO PLAINTIFFS

61. Defendant USCIS’s unreasonable delay in completing the adjudication of the subject I-765

EAD application is causing Plaintiffs substantial harm. Plaintiff-wife was terminated from

her employment on September 30, 2020. Plaintiff-wife is extremely passionate about her

role as a at . This loss of employment has

caused significant disruption in Plaintiff-wife’s professional trajectory, and she will lose

out on meaningful employment opportunities moving forward. The employment

termination has caused mental stress on the Plaintiffs, and has negatively impacted her

previous employer. Her absence will cause “…hardship for

and result in important projects missing deadlines in 2020 for key customers.”

See Exhibit H.

62. In addition to the damage to Plaintiff-wife’s career, the loss of the secondary income has

constrained the household and made it difficult for them to manage their monthly

household expenses as it relates to their necessary expenses and taking care of their family

in the United States and in India. Moreover, Plaintiffs have suffered and will suffer

immediate and irreparable economic harm, in the form of termination from employment,

an inability to manage household expenses, loss of driving privileges, and an inability to

secure additional job opportunities since the expiration of the employment authorization

card. See Exhibit B, C, and Driver License, Exhibit J.