This is a case about how quickly United States Citizenship and Immigration Services must process, print, and mail Employment Authorization Documents (EADs or Form I-766) for immigrants who have received approval for their Applications for Employment Authorization (Form I-765). On July 22, 2020, an immigrant who had received employment approval but had not received her EAD filed this class action suit in the Southern District Court of Ohio Eastern Division. She sued the agency and its Acting Director and Chief of the Office of Intake and Document Production under 5 U.S.C. § 706(1), 5 U.S.C. § 706(2) and 28 U.S.C. § 1361. Represented by private counsel, the plaintiff sought a temporary restraining order, preliminary and permanent injunctive relief, declaratory relief, and a writ of mandamus for damage sustained by the plaintiff and putative class members resulting from the agency’s intentional slowing and stopping of printing EADs and for the violation of plaintiffs’ 5th Amendment right to Due Process. The plaintiff had been unable to work due to the agency’s delay in printing her EAD and her employer was threatening to fire her if she did not return to work before August.

On July 28, 2020, the defendants filed for a Motion to Dismiss for lack of jurisdiction. On August 3, 2020, Chief Judge Algenon L. Marbley denied defendants’ motion and granted the plaintiff’s Motion for a Temporary Restraining Order that would require defendants to issue EADs to putative class members immediately or within seven days of the court’s order. Counsel for plaintiffs and defendants began mediation talks in early August. Settlement talks continued until August 21, 2020, when Chief Judge Marbley signed the parties’ consent order.

As part of the consent order, the remaining plaintiffs filed an order of voluntary dismissal. In the consent order, the defendants denied all of plaintiffs’ allegations and stated that the consent order was not and should not be taken as or construed to be an admission of responsibility. Plaintiffs also withdrew their motion for class status in the consent order. In terms of interim relief, the defendants agreed to post a notice on the agency’s website explaining how an alternative form (Form I-797) could be used in place of an EAD while a person awaits the printing of that document (this policy expires October 15, 2020).

The defendants also agreed to create a putative class list which will include all plaintiffs and putative class members. The list is divided into two categories: sub-class one and sub-class two. Subclass one members were defined as immigrants whose EADs are already queued for printing at the time of list creation. For these individuals, the defendants agreed to mail EADs within a week of the execution of the consent decree. Subclass two members were defined as immigrants who EADs have not been queued as of the day the list was created. For these members of subclass two, the defendants agreed to mail EADS within seven days of USCIS collecting biometric data for the individual.

The class list list tracks the receipt number for the submitted I-676 form, the date the I-765 was approved, and the date the EAD was produced. In a status report filed on September 9, the agency reported that 45,565 putative class members had yet to receive their EADs. In the second report filed on September 30, USCIS reported that they had sent EADs to all of the sub-class one members and 15,177 of the 17,736 total sub-class two members. In addition to the list creation, the defendants also agreed to pay $90,000 in attorneys fees.

As of October 15, 2020, the case remains ongoing.

Gabrielle Simeck - 10/10/2020


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