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The Impact of Spousal Green Card Delays

Written By The Shapiro Law Group on August 25, 2021

U.S. Citizenship and Immigration Services (USCIS) takes as long as two years to process a large number of spouse visa applications, which causes many spouses to lose employment. To help combat this problem, the American Immigration Lawyers Association (AILA) has opened a lawsuit that would drive the Department of Homeland Security (DHS) to resolve this issue.

Arguing That Spouses’ Unemployment Results from USCIS Inaction

The lawsuit that AILA filed pertained to Divya Jayaraj, the spouse of an H-1B visa holder and formerly an international student who had come to America for educational purposes. Because of her status as a spouse of a worker with an H-1B visa, Divya qualified for an H-4 EAD, or employment authorization document. 

At the same time as her husband extended his visa, Divya filed applications for an extension of her H-4 status, but USCIS had delayed scheduling her for biometrics. This delay ultimately resulted in her losing her job.

The plaintiffs, in this case, have attempted to determine whether USCIS truly requires the requested biometric data or if it’s the result of Trump-era policies intended to keep the spouses of H-1B visa holders from getting and retaining jobs.

The Introduction of a New Biometrics Form

In the lawsuit, plaintiffs claim that USCIS intended to prevent Divya and other H-4 spouses from being able to legally work in the U.S. While the agency was unable to do so via regulations, the agency implemented Form I-539, which requires the submission of biometric data. At the same time, the agency did so knowing that the new requirement would lead to processing delays for visa applicants. 

Before March 2019, USCIS didn’t delay in reviewing and processing H-4 status and EAD extensions, doing so within 180 days. However, the new form quickly led to delays exceeding 180 days.

Plaintiffs in the lawsuit claim that not only is the Executive Order allegedly responsible for the new form unsupportable, but it’s also untrue that the FBI can’t use biometric data in the IDENT system, despite USCIS’s claims to the contrary. 

Overall, Divya and other plaintiffs in this case want to make sure that future processing delays don’t take place that could continue to cause immigrant spouses to lose their jobs unfairly.