EAD Delays (Kang v. DHS) Round 2 FAQ

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EAD Delays (Kang v. DHS) Round 2 FAQ

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EAD Delays (Kang v. DHS) Round 2 FAQ

Thank you for your interest in our new lawsuit challenging USCIS’ delay in adjudicating EADs (I-765 work permit applications). On November 8, 2021, we filed a case called Kang v. Department of Homeland Security that asked a federal judge to order USCIS to process your EAD applications immediately, and to change their policies and procedures to avoid long delays in the future. The case was filed as a class action along with about 150 named plaintiffs.

The case was a success for the named plaintiffs all of whom had their cases adjudicated within about three months of filing the suit. We did not succeed with the class claim which means it is necessary to file a new suit to seek relief for people with delayed EAD applications. We also did not get to the issue of whether USCIS could be ordered to accept filing receipts as evidence of employment authorization since the case was dismissed after all of our plaintiffs received their EADs. Ready to sign up as a plaintiff? Instructions are here. The sign-up deadline is October 31, 2022 at 12:00 pm Central.

Why are we suing? What is this case about?

USCIS is failing to timely process applications for employment authorization, leaving thousands of people at risk of losing their jobs, driver licenses, or health insurance. Federal agencies have to do their job. We will be asking a federal judge to order USCIS to immediately adjudicate our plaintiffs’ applications, and to change their policies and procedures to ensure that this problem does not continue.

Who is eligible to participate?

Anyone (except an L-2 EAD or H-4 EAD extension applicant) who filed an I-765 Application for Employment Authorization (EAD application) on or before June 30, 2022, and who does not yet have a decision. This includes EAD applications in almost all categories, including those filed with other applications. It includes initial applications as well as renewals.

There are several groups of people who benefit from new policies or ongoing lawsuits who may not join our lawsuit:

  • If you are already participating in another EAD mandamus lawsuit (for yourself only, or with a group), you cannot join this lawsuit.
  • If you have applied for asylum and are applying for your first work permit, you may benefit from CASA de Maryland / ASAP membership. If you qualify for CASA or ASAP membership, you do not need to join our lawsuit because the government may already be required to adjudicate your EAD application within 30 days of filing.
  • U visa applicants, and those who hold U visa status, will not be part of this lawsuit. You may contact one of the individual firms if you would like a consultation about a delayed EAD relating to a pending or approved U visa application.
  • Ukrainian parolees (you are part of the Shumilina v. Jaddou case we have already filed).
  • Individuals eligible for the new 540-day extension applicable to some EAD categories

My application has been pending a long time, but I filed after June 30, 2022. What can I do?

We may have an opportunity to add more plaintiffs to the case in the future, especially those who filed their EAD applications after our deadline. If you’re interested in the lawsuit but don’t qualify yet, please sign up on our waitlist to be notified if we’re adding new plaintiffs. You may also consult an attorney at one of our firms to see if you would benefit from an individual lawsuit for your case.

What is the legal basis for this lawsuit?

The case is seeking a writ of mandamus based on unreasonable delays by USCIS. A writ of mandamus is a judge’s order to the government to immediately adjudicate a case that has been unreasonably delayed. Federal agencies like USCIS have a legal obligation to do their jobs promptly with due regard to the necessity and convenience of the parties.

We will also be seeking an order from the court to force USCIS to change their policies in the future to prevent this problem, for example, by automatically extending all EAD categories, or making an I-765 receipt an acceptable I-9 document.

What would a win look like, and what is the timeline? How long will it take to get results?

Our goals are to get all of our plaintiffs’ EADs adjudicated as soon as possible, and to prevent unreasonable delays in the future. We are also seeking long-term fixes to the EAD process since our plaintiffs will likely be filing extensions in the future.

Often, the government speeds up the completion of individual plaintiffs’ cases right away when we sue. This was certainly the case for our plaintiffs in the earlier EAD mandamus case. However, this is never guaranteed; it is possible that USCIS will not treat plaintiffs’ cases differently from other pending EADs until and unless the judge issues an order.

Normally, the government has 60 days to respond after we file the complaint with the Court. We expect them to file a Motion to Dismiss, telling the judge that USCIS cannot possibly adjudicate so many applications quickly and that they don’t have an obligation to adjudicate them within a specific period of time. We will respond, and the judge may set a hearing or make a decision without a hearing. This process may take several months, and during that time USCIS will continue to process your applications.

In the meantime, we will likely file a Motion for Summary Judgement, which asks the judge to immediately make a final decision on the case without a trial, and order the government to process your EAD applications promptly. The government will probably oppose this request, and then the Judge may set a hearing or decide the case without a hearing. If the judge approves our Motion, we could win in less than 60 days. If the judge denies our motion, then we keep fighting the case, but it may take months longer. In the meantime, nothing stops USCIS from continuing to process your EAD applications as usual.

Note that we are filing to speed up processing on these cases. If you are not eligible for the EAD or the underlying status that the EAD application is based on, suing the government is not going to solve that, and will not guarantee that your EAD will be approved.

Is this case being handled as a class action?

Yes. We will seek class certification as we did in the earlier Kang which also dealt with unreasonable delays. If the judge denies class certification, then only named plaintiffs will benefit.

Seeking class certification would be important here, because getting your EAD issued as a result of this lawsuit this year, does not mean you will get it issued in a timely manner next year. By seeking class certification, we will seek a court order binding USCIS to a set maximum period in which to issue EADs, benefiting plaintiffs now AND later.

Furthermore, there is a trend towards US Attorneys challenging venue claims if a plaintiff does not reside in the district where the case is filed. Filing as a class action is one way of fending off a venue challenge.

Where will we file this case?

We will likely file this case in the Federal District Court in the District of Columbia (where most suits against federal agencies go forward).

Will there be a risk of backlash if I participate in the case?

Over the years we have seen that the opposite tends to be the case – the government treats people better when they know that they are willing to go to court to defend their rights. In 25 large federal lawsuits we’ve filed over the past few years with several thousand plaintiffs, we have not heard of a single report of government retaliation against a plaintiff.

What are the odds of success?

Any lawyer who promises success in litigation is not serving a client well. Litigation is unpredictable, and we do not have a crystal ball or control over federal judges. We have had success with similar cases (including our previous Kang litigation) and we believe our arguments are strong. We are optimistic, but we don’t believe it is appropriate to guess about specific odds. If you need a guarantee of success, please do not participate in this lawsuit.

What is the fee to participate in the case?

The legal fee is $1000 per plaintiff. If you would also like to include a spouse or child(ren) with related EAD applications, there will be no additional charge.

The fee is a one-time charge, and we will not be billing for additional expenses and legal fees. The fee is due at the time of joining the suit, no later than October 31, 2022 at 12:00 pm Central. We will be tracking our hours for this case and if someone who retains us withdraws shortly after submitting the representation agreement and payment, but before filing, we would be able to offer a partial refund. However, once we have drafted the complaint and filed it with the court, all fees will be considered earned and we will not issue any refunds. This is true even if a plaintiff’s case is adjudicated and the plaintiff does not believe the progress was a result of the lawsuit, and even if the plaintiff withdraws their EAD application or receives a denial.

After November 3rd, if the attorneys determine we do not have enough plaintiffs, we reserve the right to decline to proceed with the lawsuit and refund all plaintiffs’ fees in full.

How will communications work? How will I know what is going on with the case?

We will have periodic livestreams to communicate with plaintiffs on the progress in the case and answer questions. We also email clients when there is news on the case.

We do NOT have the ability to discuss your individual case situations. You should hire a lawyer to represent you on your individual case if you need assistance, and you are welcome to hire any of the three firms co-counseling on this case if you need to talk to an immigration lawyer and do not have counsel already. We also cannot answer your individual emails. We ask that you communicate with us about your cases ONLY via a web form we will make available after the complaint is filed in the case, and you are welcome to post questions in our regular livestreams. Again, if getting your individual questions answered immediately is a priority, you should consider filing your case individually.

What if I already have a lawyer or have filed a mandamus case?

We are not representing you with respect to your individual case and cannot advise on your individual case strategy. If an attorney already represents you in your work permit application, you should talk about the pluses and minuses of joining the lawsuit and whether it makes sense for you. If you are already independently pursuing a mandamus action, you are not eligible to be a plaintiff in this case. And if you join another mandamus case after we file this case, we will have to have you dismissed from this case.

What about my petitioner / employer / spouse? Do I need their participation or permission to participate in the case?

No. The I-765 EAD application is yours, not your employer’s or your spouse’s. You are welcome to discuss the case with your employer or petitioner and their immigration attorney, but they do not need to hire us or participate in the case.

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