Effects of Employment Authorization Processing Delays on Foreign Workers and Companies

Harris Beach PLLC

In December 2020, we reported on the pandemic’s adverse effects on United States Citizenship and Immigration Services (USCIS) and how the nearly four-month office closure of Application Support Centers (ASCs) and Field Offices caused a significant delay in Employment Authorization Document (EAD) processing across the United States. Since then, processing times continue to remain lengthy for both family-based and employment-based EAD applications, with wait times ranging anywhere from five to twelve months. Undoubtedly, this delay in processing has interrupted the lives of thousands of individuals eager to work and companies eager to hire or retain foreign employees. During financially uncertain times, many question whether the U.S. will recover from the devastating economic effects of the pandemic. The inability to seek employment or the loss of employment because of USCIS’ delay in processing EADs are particularly burdensome for many.

As a result of the processing backlogs, we have seen many employers unable to onboard new employees and terminating employees while they wait for their EADs. Most applicants can file to renew their employment authorization card up to six months before their cards are set to expire, yet, given the current lengthy processing times, many applicants are not getting their renewals approved before the current EAD expires. It should be noted that employers have an obligation to verify that all of their new hires are authorized to work and do so by completing the USCIS Form I-9. During routine I-9 audits, if an employer is unable to verify its employee’s work authorization, they can be liable for civil sanctions or fines. Thus, most employers remain strict about hiring and retaining only work authorized employees and are forced to let go of employees who have a gap in work authorization. Consequently, the workflow of many companies has been disrupted when foreign workers are terminated, even if only temporarily.

At the same time, companies face increased costs recruiting and training replacement workers, in cases where companies are fortunate even to find suitable replacement. We have seen this problem arise in many contexts and across industries. For example, in an already challenged healthcare industry, hospitals and healthcare organizations have been forced to temporarily remove some critical healthcare workers from payroll because of the delay in issuing both receipt notices for EAD extensions, as well as approvals for EADs. During a global pandemic, this causes devastating consequences. We have also seen this occur with many of our corporate clients who rely on critical employees to meet revenue projections, fulfill contract obligations and meet deadlines. The loss of these employees can cost a company significant revenue as these employees are no longer authorized to work after waiting for the adjudication of their EAD renewal applications for nearly seven months. To avoid sanctions and fines, these companies are unable to keep these vital employees on payroll costing them significant lost revenue.

The economic fallout from COVID-19 has been devastating for millions of individuals. The economic crisis is disproportionally affecting some segments of the population. According to the Pew Research Center, immigrants have been hit particularly hard. We have seen employees lose their jobs across a diverse range of sectors in the economy. Here in Albany, for example, the performing arts, food & drink, film & recording sectors have experienced a significant decline in business.

There have been some encouraging signs of an economic rebound. For example, New York State has “regained more than one in four of the jobs it lost in March and April [2020].” Nonetheless, many people are still struggling to keep a roof over their head. Again, immigrants have been rendered particularly vulnerable. Many individuals are blamelessly losing their work authorization due to processing delays. Compounded with the anxiety-inducing times we are currently living through, individuals losing their jobs or missing out on job offers or prospects because of agency bureaucracy is distressing, let alone another major contributing factor that is negatively impacting the U.S. economy.

There seems to be no real recourse for EAD applicants to speed up processing times. Many have sought to expedite the processing of their EAD applications through a process called “expedited processing.” Expedited processing is made available by USCIS to applicants who can show (a) severe financial loss with further delay, (b) an urgent humanitarian reason, or (c) one of the other criteria laid out by USCIS. As we have recently learned, however, the number of expedited processing requests seems to be almost equal to the number of EAD requests currently pending before USCIS. As a result, this alleged recourse to speed up one’s EAD application is rendered moot.

Other applicants have sought recourse by filing a writ of mandamus in federal district under the Administrative Procedure Act court, arguing that USCIS has unreasonably delayed the processing of their applications. Most recently, however, a DC district court ruled against the plaintiff seeking an order to compel USCIS to expedite her EAD application, arguing, among other points, that ordering the expeditious processing of plaintiff’s case would not cure USCIS inability to process all other applications timely. The court further stated that where a “judicial order putting [the petitioner] at the head of the queue [would] simply move[] all others back one space and produce[] no net gain” would not be fair. Nibber v. U.S. Citizenship & Immigration Servs., 2020 U.S. Dist. LEXIS 235099, *20, 2020 WL 7360215.

At the end of the day, USCIS’s delayed processing times has had particularly deleterious effects on employers and foreign national employees nationwide. Thousands of foreign workers and companies find themselves, through no fault of their own, unable to seek employment, hire or retain foreign workers. This has caused great financial strain on thousands of people, especially those with little savings, and caused the loss of millions of dollars in revenue for companies. Together, these issues are deeply troubling and particularly noteworthy, as they compound the economic fallout from COVID-19 at a local, regional, and national level.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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