Round 3 Employment-Based Immigrant Visa Wastage FAQ

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Round 3 Employment-Based Immigrant Visa Wastage FAQ

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Round 3 Employment-Based Immigrant Visa Wastage FAQ

1. Why are we suing?

We are looking to assist individuals who have filed employment-based adjustment of status cases who are facing delayed adjudications and who were ready to process, but skipped over in the most recent fiscal year. Plaintiffs in this case will be those who had current priority dates before 9/7/2022 and were in a position to be approved (i.e. they were not waiting on an I-140 to be approved or something similar), filed an adjustment of status application prior to January 1, 2022, and are now at risk of a long wait for adjusting because of retrogression in the October 2022 Visa Bulletin. We are seeking a court order that forces available visas to be used for people in this group before others who filed more recently.

We will be suing the State Department in this new case. We will also sue USCIS, but as the State Department allocates visas under Section 203(e) of the Immigration and Nationality Act, they are primarily responsible for determining the order of visa issuance. They also are responsible for determining whether available visas are allocated to “rest of world” or backlogged countries and so are the appropriate agency to sue here. If we obtain the relief we’re seeking from the State Department, we will then seek expeditious processing of the adjustment cases by USCIS.

We are committed to continuing to help the Madhavan Plaintiffs either by continuing to participate in the Madhavan case or by participating in this one. If you are a Madhavan plaintiff interested in continuing working with us for relief, please complete the engagement letter and declaration apps for this new case and we will be in communication regarding next steps for you. We will not be charging Madhavan plaintiffs to be in this case so please skip the step for making a payment if you are in the Madhavan case.

2. What was the result of your Round 2 (Madhavan) suit?

The results in the Madhavan case were mixed. We fought on two main issues – forcing USCIS to adjudicate enough adjustment applications so no visas would be wasted (such as the 70,000 wasted in Fiscal Year 2021) and getting all of our plaintiffs adjudicated in a reasonable timeframe. We certainly saw success on the first issue and believe USCIS’ unprecedented adjudication of nearly double the number of employment-based cases as in a typical year was the result of our suit and another similar one filed in a different federal court. We had 161 of 276 adjustment applications filed by our plaintiffs adjudicated and we believe that many of them would have not been processed had it not been for the suit. However, we have 115 applications that remain pending and are continuing this fight on their behalf and on behalf of new plaintiffs who are similarly situated.

3. Is this case being handled as a class action? 

Yes. We will seek class certification as we did in Madhavan. Note that in Madhavan, the motion for class certification was withdrawn and there is no certified or pending class in that case. Should the judge in this case decline to certify a class, it is possible that we could win the case for our actual plaintiffs while other potential members of the class would not get relief. We also filed Madhavan as a class because, as happened in the Chakrabarti case we filed in 2021, there is a trend towards US Attorneys trying to move cases to other courts 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; a class includes people from all across the country and cannot be split up.

4. What is the legal basis for the suit?

The case is seeking a determination by the court that the State Department failed to follow the law in the way it allocated visas in Fiscal Year 2022.  Section 203(e) of the Immigration and Nationality Act states

(e) Order of consideration

(1) Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General (or in the case of special immigrants under section 1101(a)(27)(D) of this title, with the Secretary of State) as provided in section 1154(a) of this title.

(2) Immigrant visa numbers made available under subsection (c) (relating to diversity immigrants) shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State for the fiscal year involved.

(3) Waiting lists of applicants for visas under this section shall be maintained in accordance with regulations prescribed by the Secretary of State.

We know from our own experience in Madhavan as well as numerous reports from others in the field that adjustment applicants were approved often in a last in first out order rather than the first in first out order described in the above section of the law.

If we are successful and visa numbers are ordered to be made available to plaintiffs, we are also filing a writ of mandamus based on inordinate 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. We will also address the issue of how priority dates are manipulated in the Visa Bulletin, and the harm caused by regression.

5. What is the deadline to sign up for the case?

We anticipate closing signing up to be in the case on November 28, 2022. To sign up before the deadline, plaintiffs must fill out their engagement letter, create a declaration, and make their legal fee payment.

6. What remedy is the lawsuit seeking? What does a win look like?

We are seeking a court determination that the State Department failed to follow the law in how visas were allocated, both in the order visas were provided and in the number of visas set aside for backlogged countries. If we can succeed on that claim, then we believe we can seek immediate adjudication of applicants with longstanding applications by requesting mandamus relief (asking a judge to force USCIS to expeditiously adjudicate our plaintiffs cases).  The class aspect of the case is only with respect to the issue of the allocation of visas. We also hope to get clarification on retrogression calculation and manipulation of priority dates as a consequence of not following the statute.

7. Where is the case being filed?

We are planning on filing the case in the District Court of the District of Columbia.

8. How long will it take to get results?

We hope to file our complaint in November, and we expect a hearing on a preliminary injunction within a few weeks to a few months of that. However, note that the courts can be backed up and it has taken longer in the last year to get hearings. Do not be surprised if it takes longer to get that hearing. The preliminary injunction hearing is the hearing where a judge can order temporary relief until the case eventually gets to trial. For most, this is a more critical finding than the eventual decision in the case.

If we win on both the allocation claim and the mandamus claim, we expect our plaintiffs’ cases to be processed within a few months of the judge issuing his or her order. If the government is not satisfactorily moving these cases, we will seek redress from the judge in the case.

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

We have found over the years that the opposite tends to be the case – people who file a lawsuit are likely to get better treatment than people who don’t. Knowing that an applicant is not afraid to sue – something that is time consuming and expensive for the government to have to defend – usually means that the litigant will be treated respectfully. Note that we are filing to speed up processing on these cases. If a case has significant problems, suing the government is not going to solve that. In the 20+ mass federal lawsuits we have filed over the past two years, we have not received a single report of retaliation against a plaintiff.

10. What are the odds of success?

Any lawyer who promises success in litigation is not serving a client well. Litigation is unpredictable by its nature and USCIS is fighting back hard in most of these cases. We do not know which judge will be assigned to the case, for example. We also believe our arguments are strong and have been bolstered by what we have learned in prior cases. So, we are optimistic. But plaintiffs should also know that our arguments will request a court to order massive changes to the way that agencies allocate visa numbers. While we feel good about our arguments, a major challenge to longstanding agency policies will face stiff opposition and there is a significant chance that we could lose.  Prospective plaintiffs must understand that success is not guaranteed and there will be no refund if the outcome is not what we want.  Likewise, there is no promise of free or discounted participation in any future case just because a person was a plaintiff in this case.

11. What is the charge to participate in the litigation?

We are not charging plaintiffs who paid to be in the Chakrabarti or Madhavan cases. We are charging $2,025 per principal applicant for new people to participate in the case. There is no additional fee to include derivative family members who also have adjustments pending. 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 outset. 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 the complaint has been drafted and filed with the court all fees will be considered earned and no refunds will be issued after that point. Please note we are moving quickly on this lawsuit and aim to file the complaint in November 2022.

Also note that if the court does not agree to hear the case as a class action, and if the court splits the mass case into individual suits in many different courts, we reserve the right to withdraw representation and/or offer a separate retainer agreement with additional fees for representation in individual cases in other jurisdictions.

12. How will communications work?

We will have weekly livestreams to update plaintiffs on the progress in the case and answer questions, and we send out emails to clients when there is news on the case. We do NOT have the ability to discuss your individual case situations nor will we answer questions on an individual basis about our strategy or your individual questions about the lawsuit. 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 talk to an immigration lawyer and do not have counsel already.

We also do not have the ability to 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 is a priority, you should consider filing your case individually.

13. 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 you are represented by counsel, 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 would not be able to be a plaintiff in this case.

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

No. The green card application is your application, not your employer’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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