Biometric processing delay leads to job losses, H4 visa holders might sue USCIS

The delay in biometric processing for the renewal of H4 visas and employment authorisation document (EAD) is forcing many Indians in the US to take legal recourse as they are unable to schedule their biometric appointment even after months of waiting.

According to the United States Citizenship and Immigration Services (USCIS), of the 1.36 lakh H4 issues/processed in FY19, Indians accounted for about 1.2 lakh. A significant number of them can avail EAD.

Netra Chavan, who runs one of the largest Facebook groups for H-1B and H4 visa holders, said that the biometric processing has got delayed for more than 10 months in certain cases, and many have lost their jobs.

An H4 visa is issued to the dependent family members (spouse and children below 21 years of age) of H-1B visa holders. An H4 visa holder can get employed in the US as well through EAD, which was introduced by the Obama administration in 2015.

Law firms get busy

Greg Siskind, an Immigration lawyer in the US, and founding partner of Siskind Susser, PC, told Moneycontrol: “Many people are starting at filing suits and we have some of these cases.” According to reports, Reddy and Neumann Law group is likely to initiate a lawsuit for delays in the H4 EAD processing.

Immigration experts pointed out that this is the only way after the H4 visa holders have exhausted conventional relief measures such as getting in touch with the USCIS for updates and the local Congressman’s office for assistance.

Why is biometric processing a huge issue?

Biometric processing for H4 visa holders and H4 EADs was introduced in March 2019 and is mandatory for visa approval. The USCIS had outsourced the processing to private contracting companies.

According to the blog American Kahani, this process now takes months, compared to the 2-3 weeks before the introduction of biometrics. COVID-19 only made things worse.

Starting March 2020, the outsourced centres that took biometric data were shut down, making it impossible for the H4 visa holders to renew their visas. This also delayed getting their EAD in place. Now, they are unable to reschedule their appointment with the USCIS.

There is not much empirical data on the scale of people affected. However, the survey done by Chavan in her group of over 1 lakh members does throw some insights. Of the 800 people who responded to the survey, 31 percent had already lost jobs, and another 35 percent are at the risk of losing them.

Recent relief for H4 EAD will not apply

The recent relief H4 EAD holders got will not apply to this group. In a guideline announced last month, the USCIS allowed H4 EAD holders who got their visas approved between December 2019 and August 2020 and did not get the cards due to printing delays, to continue work on a temporary basis.

This came after a lawsuit over delays in printing EAD cards was filed.

This is applicable to those who have already finished their biometric processing and have their authorisation approved. However, it leaves out many of those who have applied but have not been able to complete their biometric authentication.

Take for instance Sumathi*, an H4 visa holder. She had applied for her visa and work permit extension in November 2019 and scheduled a biometric appointment that got cancelled due to the pandemic. Close to 10 months now, there are hardly any updates and she is unable to reschedule her appointment. Checking with the USCIS has not helped either. Meanwhile, she has lost her job.

Most of these dependents say that this is unfair, given that the delay is putting at risk the contribution they have made to the company they were working over the years.

“This is affecting us both financially and mentally,” said Valli*, an H4 EAD holder, who has been waiting to schedule biometric appointments, and is looking at seeking legal recourse.