Brillliant Legal Maneuver: Nonprofits Join Class Action Suing Over USCIS Delays

Technical ProblemThe gears of bureaucracy are grinding even more slowly than usual, as U.S. Citizenship and Immigration Services (USCIS) routinely takes weeks or months to approve non-citizens’ applications for employment authorization (a work permit).

Why should we care? Let me start by explaining why everyone in the U.S. is affected by these USCIS delays, and then circle back to the nonprofits bringing suit over it.

Numerous non-citizens have the right to be in the U.S. and to work here. In order to actually accept a job, however they need a plastic ID card called an Employment Authorization Document (EAD) or work permit. For instance, people who have been granted asylum or Temporary Protected Status (TPS), as well as people who’ve applied for a marriage- or family-based green card and are awaiting a USCIS interview can apply for work permits.

But, they can’t work until the card arrives — and they have to stop working if their card expires before they’ve successfully renewed it. Theoretically, they can walk straight into a USCIS office for an “interim” work permit if the mailed-in EAD application yields no reply, but the agency hasn’t been complying with the obligation to act on those requests, either.

The result of these USCIS delays affects more than just the noncitizen:

  • U.S. businesses of all sizes may lose employees on short notice when their work permits aren’t renewed — or else face legal sanctions for continuing to hire that person.
  • The cost of that business’s goods may rise, or its efficiency levels fall, because of this staffing shortage.
  • The non-citizens (who are in many cases low income, if they haven’t been able to legally work for a while), may go to nonprofit organizations, in search of low-cost help in inquiring after their seemingly long-lost work permit application.
  • The nonprofits may spend valuable hours writing and calling in search of answers, then following up when they don’t get those answers. In my experience, getting USCIS to take action can be enough to put a lawyer on high blood pressure meds. And indeed, the recently filed complaint states that USCIS “provide[s] incorrect and conflicting information to applicants who call the agency’s 1-800 customer service number or visit USCIS offices for Infopass appointments.”
  • Donors to these nonprofits have to spend more to support even the most basic services.

That’s why we should all care, in theory. But the brilliant action recently taken by two U.S. nonprofits — Northwest Immigrant Rights Project (NWIRP) in Washington State and The Advocates for Human Rights in Minnesota — was to say (in essence), to heck with mere caring, the U.S. government owes them money over the losses they’re sustaining. They joined a class action lawsuit, adding their names to those of individual immigrants (who are directly damaged by being unable to work) filing suit against USCIS.

It’s not an immediately obvious strategy. As any first-year law student can tell you, before someone can join in on a class action lawsuit (in which a group of people or entities collectively sues the same defendant), they need to have been directly injured by the defendant’s actions. They can’t add their names in sheer protest.

Here’s how the organizations explained their ability to join in the suit within the complaint filed in late May of 2015: “Defendants’ policies and practices have caused [NWIRP and The Advocates] to divert scarce resources to assisting and advising clients whose EAD applications have been delayed, and who have not received interim employment authorization.”

Make no mistake, nonprofits serving immigrants really do have scarce resources. Funding comes almost all from private sources, not governmental ones. At one immigration nonprofit where I worked, the computers still ran on MS-DOS (remember that?) while the rest of world was using MS Office and email. I had to go home just to print out a document. Any extra time spent on one task means staying at work even later to deal with the hundreds of other waiting tasks — while the line of people awaiting services grows longer and longer.

Let’s stay tuned to see how this lawsuit goes.