Why are we suing?
USCIS is failing to timely adjudicate employment-based Adjustment of Status applications. Because of the complex system for visa quotas and “rollovers,” thousands of people (mostly Indian and Chinese nationals) are at risk of losing the opportunity to receive their green cards this year, which will make the already-crushing backlog longer for all employment-based visa applicants. This lawsuit aims to force USCIS to adjudicate employment-based Adjustment of Status applications before the end of the fiscal year in September 2021, or to “hold over” visa numbers so that they do not disappear if USCIS fails to timely adjudicate these cases.
Who is eligible for this lawsuit?
Individuals who filed Employment-based Adjustment of Status application before the end of 2020 who may be adversely impacted if visas that rolled over to the EB-1/2/3 employment categories after September 30, 2021, are no longer available. Both applicants who have approved I-140s and those who filed I-140 downgrades concurrently with their Adjustment of Status applications are eligible to join this lawsuit. You must have filed your case during the period specified above and your case must still be pending with USCIS. If the principal applicant signs up, the derivative applicants (i.e. spouses and children) will also be included in our lawsuit.
We expect our lawsuit to have the greatest benefit for the nationals of India, since they have the longest backlogs and would be most harmed by the loss of visa numbers. However, applicants from China who applied during 2020 may join the lawsuit as well since this loss of visa numbers will also lengthen their waiting period for a green card.
What do you mean, lost visa numbers? How does this work and how can a lawsuit help?
Approximately 120,000 immigrant visas from Fiscal Year 2020 that were not used by family-based preference green card applicants “rolled over” to the employment-based categories, allowing many Indian nationals to apply for Adjustment of Status after years of waiting. Virtually all of these numbers should be allocated and used by applicants with pending Adjustment of Status applications from India (since they have the oldest priority dates).
If USCIS does not adjudicate all of these cases by September 30, 2021, the Immigration and Nationality Act requires the leftover numbers roll back to the family categories. However, because of the complicated way the family-based immigrant visa numbers are calculated, the family quota for FY 2022 will be precisely the same regardless of whether the numbers roll over or not. The effect will be a likely net loss of 100,000+ green cards specifically for Indian nationals, with no benefit for family-based applicants.
Even worse, USCIS does not appear to have a plan to adjudicate these cases in a reasonable timeframe, and certainly not by September 30, 2021. USCIS statistics show the agency is on pace to process just over 100,000 employment-based green cards during FY 2021. This means that only will USCIS NOT use the 120,000 immigrant visas rolled over from the family categories, it will not even use the 140,000 allocated for this fiscal year. Reported processing times range from a year to five years at the three service centers that adjudicate employment-based I-485 cases. Those times are outrageous, and we are seeking to force USCIS to adjudicate cases in a more reasonable time frame, and to adopt measures that speed up Adjustment of Status processing (like waiving interviews for employment-based cases).
We will ask the judge to force USCIS to process all of our plaintiffs’ green cards by September 30, or “reserve” visa numbers for employment based green cards for the following fiscal year so they are not permanently lost.
If family-based numbers are going to roll over for employment-based cases again in October, why not just wait on that rather than participating in this suit? Will I benefit from the lawsuit if I don’t participate?
USCIS is currently showing processing times of up to five years for employment-based adjustment applications. This means that, if we don’t take action now, the same thing could happen next year: numbers may roll over from family-based green cards for Fiscal Year 2022, and those numbers could be lost as well, making the backlog even longer. We hope this suit will prevent that outcome as well.
Indian and Chinese nationals pay most of the price for USCIS inaction and delay, because they are the ones who need these immigrant visas now. Almost 40% of the India EB-2 and EB-3 backlog could be reduced if these extra “rolled over” numbers are properly used in the next two fiscal years. Clearing this backlog would pave the way for a reduction in the backlog for Chinese nationals.
If we are successful in getting a court to reserve the numbers, our plaintiffs would likely receive priority in getting adjusted over non-plaintiffs as is traditional in mass litigation. This occurred in our recent litigation on a similar issue involving Diversity Visa winners. In that case, we also succeeded with our request for visas set to evaporate on September 30th to be reserved for issuance after the October 1st deadline.
What is the legal basis for the suit?
The case is seeking 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 also believe that USCIS’ delays are thwarting Congress’ intent that where there is demand, all immigrant visas be used, and that in doing so is violating their legal obligation to use all available numbers each year. This particular cause of action will like be through a declaratory judgment portion of the complaint. USCIS’ failure to adjudicate cases in a timely manner and the resulting loss of 100,000+ immigrant visas runs contrary to Congress’ intent and we will request a judge reserve the unused green cards for issuance after October 1st should the deadline for adjudication pass.
What is the deadline to sign up for the case?
We anticipate closing signing up to be in the case on June 21, 2021. To sign up before the deadline, plaintiffs must fill out their engagement letter, create a declaration, and make their legal fee payment.
What remedy is the lawsuit seeking? What does a win look like?
Simply speaking, we are seeking to force the government to immediately adjudicate the applications of the plaintiffs in our litigation. We believe the government is likely to speed up the completion of individual cases even before we get in front of a judge in order to “moot out” plaintiffs. We’ve seen this in similar cases including our various other suits currently in the courts. For others, it will take the judge’s order for their cases to be adjudicated. If the government does not comply with the judge’s order, they risk being held in contempt.
We are also seeking an order from the judge that if USCIS does not meet the September 30th deadline to adjudicate all of the plaintiffs’ cases, to reserve all unissued EB-2 and EB-3 visas for issuance after 9/30/2021 so that all the visas are used.
This lawsuit cannot guarantee that any individual’s Adjustment of Status application will be approved. If there is a problem with your case, it could still be denied for grounds unrelated to the lawsuit, and the lawsuit will not help.
Why is the case not being handled as a class action?
Class actions take longer because they require the additional step of requesting the judge to “certify” (confirm and define) the class, which the government will likely fight. We want to file and win this case as quickly as possible because there is little time to waste before the end of the fiscal year.
It is possible the judge will order USCIS to process all similarly situated applicants promptly. If that happens, plaintiffs to the lawsuit traditionally receive priority over those who do not participate. It is also possible that the judge will only order the government to process our plaintiffs’ cases, in which case people who did not participate will not benefit at all. If you would like to benefit from the lawsuit, you should join.
Where is the case being filed?
We will likely file the case in the Federal Court in the District of Columbia because judges in DC have more experience with immigration issues and the government cannot delay the case by trying to move it to another court. However, given that USCIS is located in Maryland, we instead file in the federal court in that state.
How long will it take to get results?
We could start to see results soon once the case has been filed. That’s because the government often “moots out” cases and gets people out of the litigation by approving their cases quickly. We cannot guarantee that this will happen, and it’s possible that most plaintiffs will not see any movement on their cases right away.
We hope to file our complaint by the end of June or early July and we expect a hearing on a preliminary injunction shortly after 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 as long as four to six weeks 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 actually a more critical finding than the eventual decision in the case.
If we win, we would expect our plaintiffs’ cases to be processed promptly after the judge issues his or her order. If the government is not moving these cases in a satisfactory manner, we will address the issue with the judge.
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 13 mass federal lawsuits we have filed over the past year, we have not received a single report of 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 by its nature. We do not know which judge will be assigned to the case, for example. We have had success when it comes to fighting similar cases and we also believe our arguments are strong and have been bolstered by what we have learned in those cases. So, we are optimistic. But we do not believe it is appropriate to quantify that.
What is the charge to participate in the litigation?
We are charging $2,025 per principal applicant to participate in the case. There is no additional fee to include derivative family members who also have Adjustment of Status cases pending (that means that one fee covers an entire family if there are derivative family members whose Adjustment of Status cases are also 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. This is true even if a plaintiffs’ case is scheduled for interview or adjudicated and the plaintiff does not believe the progress was a result of the litigation. Please note we are moving quickly on this lawsuit and aim to file the complaint in late June or early July.
NOTE THAT WE RESERVE THE RIGHT TO DECLINE TO PROCEED WITH THE CASE IF WE DO NOT HAVE 100 PLAINTIFFS WHO HAVE RETAINED US BY JUNE 21st. IF WE DECIDE NOT TO PROCEED BECAUSE OF THIS, WE WILL REFUND FEES IN FULL WITHIN 21 DAYS.
How will communications work?
We will have periodic livestreams to brief 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. 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.
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 are not eligible to be a plaintiff in this case.
What about my petitioner / employer? Do I need their participation or permission to participate in the case?
No. The Adjustment of Status 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.