EAD Delays and Lawsuits Against USCIS

A spouse of a U.S. citizen, lawfully present in the United States, with a properly filed application for a green card and a properly filed application for a work permit pending — and no ability to work for sixteen months. That fact pattern, until recently rare, is now routine.

The combination of three USCIS policy shifts has produced it: the December 2, 2025 country-based adjudication pauses; the May 21, 2026 adjustment-of-status memo; and the wind-down of the CHNV parole program for Cuban, Haitian, Nicaraguan, and Venezuelan nationals, finalized by the Supreme Court’s May 30, 2025 stay of the Doe v. Noem preliminary injunction.

For employers, the result is candidates who cannot be hired despite holding lawful status. For applicants, the result is months — and in some cases more than a year — of pending I-765s with no movement and no explanation.

The 30-day adjudication rule most often cited in asylum-based EAD cases is 8 C.F.R. § 208.7(a)(1). It applies to initial employment authorization requests by eligible asylum applicants under 8 C.F.R. § 274a.12(c)(8), subject to the separate rule that employment authorization may not issue before the 180-day asylum EAD clock has run.

That 30-day rule does not apply across every EAD category. Current 8 C.F.R. § 274a.13(d) addresses renewal applications and automatic extensions of Employment Authorization Documents, not a general 30-day deadline for all I-765 adjudications. For I-485 applicants under (c)(9) and parolees under (c)(11), the delay argument usually sounds in unreasonable delay under the APA and mandamus rather than a missed 30-day regulatory deadline.

Where the agency leaves work-permit applications pending for months — and in several documented cases, by years — federal courts have entertained mandamus actions to compel adjudication.

The current EAD delays are not uniform. Three distinct fact patterns account for most of what attorneys are seeing.

(1) CHNV parolees

On March 25, 2025, DHS published a Federal Register notice terminating the CHNV parole programs and announcing the intended termination of existing parole grants. A federal judge in the District of Massachusetts preliminarily blocked the mass termination in Doe v. Noem on April 14, 2025. The Supreme Court stayed that preliminary injunction on May 30, 2025, allowing DHS to proceed.

The First Circuit ruled on September 12, 2025 that the administration’s termination was likely lawful. Litigation continues.

For CHNV parolees whose initial parole period has expired or whose underlying EAD has been revoked, the EAD backlog is functionally permanent — no new (c)(11) EAD is being issued, and the path to a replacement work permit runs through a separate basis (adjustment, asylum, marriage-based AOS).

(2) Adjustment-of-status applicants from the 39 affected countries

For nationals of the countries listed in the December 2025 pauses, both the I-485 and the associated (c)(9) EAD were halted under the Benefits Hold Policy. The June 5, 2026 ruling in Dorcas International Institute of Rhode Island v. USCIS vacated that policy nationwide under APA § 706, but agency compliance — and the government’s expected appeal — remain uncertain.

In the interim, applicants from the 39 countries who would otherwise qualify for a (c)(9) EAD continue to wait. Some have crossed the six-month mark — once the practical informal floor for receipt notice-to-adjudication — and are at twelve to fifteen months.

(3) Applicants caught in post-interview limbo

A third group: applicants who had their I-485 interviews, were given verbal indications of approval, and then heard nothing. Their underlying EADs may have expired. Renewal applications are pending without adjudication, sometimes for many months past the regulatory 30-day window.

The first line of defense most attorneys recommend is a USCIS expedite request. The agency’s stated expedite criteria include:

• Severe financial loss to a company or person where the need for expedited treatment is not the result of the applicant’s failure to timely file.
• Emergencies and urgent humanitarian reasons.
• Nonprofit organization whose request furthers the cultural and social interests of the United States.
• U.S. government interests, including public safety or national security.
• Clear USCIS error.

In practice, expedite requests on standard EAD applications — even strongly documented ones, including employer letters confirming job holds — are denied at high rates. The agency rarely cites a reason.

The downside of a denied expedite is essentially zero. The upside, when granted, is adjudication within a few weeks instead of months.

Where the regulatory timeline is far exceeded and the expedite path is exhausted, mandamus is the remaining option. The statute is 28 U.S.C. § 1361, which gives federal district courts original jurisdiction over “any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”

The doctrinal analog under the Administrative Procedure Act is 5 U.S.C. § 706(1), which authorizes a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed.”

Courts apply the TRAC factors — from Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) — to assess unreasonable delay. Those factors weigh:

• The time the agency has taken to act in light of the statute or rule of reason that governs the action.
• The nature of the interests prejudiced by the delay.
• The presence of competing priorities, including the agency’s other resource constraints.
• The effect of expediting the action on agency priorities.
• The nature of the prejudice — for EAD cases, the inability to work typically weighs heavily.

Mandamus is unusual in immigration practice in that filing the case often produces movement before the court rules. USCIS, in response to the complaint, frequently adjudicates the underlying application within weeks — sometimes days. The case then becomes moot.

The fear that filing a federal-court action will trigger retaliation in the underlying immigration case is, in the experience of practitioners who file mandamus regularly, not borne out. USCIS treats the litigation as a queue-jump rather than a personal affront.

EAD delays are not, in current practice, the result of an evenly slowed agency. They are the result of policy choices: country-based pauses, parole-program terminations, and a discretionary frame layered over adjustment of status.

The legal tools to address that structural problem are themselves structural: APA challenges to the underlying policies, class and organizational litigation, and — until those reach final decisions — case-by-case mandamus to keep individual applicants from being ground down.