Litigation FAQ for Regional Travel Ban Plaintiffs–
By Greg Siskind ([email protected])
Version date – 5/12
This FAQ relates to proposed litigation challenging the power of the State Department to refuse to issue visas in a country included in a COVID-related travel ban. The case will be filed jointly by the Immact
team comprised of the law firms Kuck Baxter, Joseph & Hall, and Siskind Susser.
[NOTE – ONBOARDING IS BEING BRIEFLY REOPENED TO ALLOW INDIANS IN BECAUSE OF THE RECENT ADDITION OF THAT COUNTRY TO THE LIST OF AFFECTED COUNTRIES. THE SCHEDULE FOR THE CASE REMAINS UNALTERED BECAUSE OF THIS.]
1. Who is the lawsuit aiming to help?
We are looking to help people in ALL nonimmigrant and immigrant visa categories who are being denied the opportunity to get a visa or required to qualify for a National Interest Exemption. Note that this suit is not about ending the regional COVID-related travel bans. We are NOT contesting their legality. This case is also NOT a mandamus action. We are NOT arguing that cases have been delayed unreasonably. We are filing individual mandamus cases as well as cases for groups of individuals in a single visa category or from a single country, but mandamus is NOT a part of this case.
Success in this case means that consulates will need to resume visa processing and they cannot use the travel ban as an excuse to turn people away. Nor will they be able to require a national interest exemption in order to process a visa.
This lawsuit cannot guarantee visa issuance. If your case was deniable for reasons other than the COVID bans, it still may be denied even if we win. And we cannot guarantee that a win means visa processing will resume at the pre-COVID pace.
Note as well that this lawsuit does NOT cover cases that are pending at USCIS or which are stuck at USCIS. To qualify for this case, an application must be pending at the National Visa Center, the Kentucky Consular Center, or at a consulate abroad.
To qualify, you must be seeking to process a visa in one of the following countries:
The Schengen area:
• Czech Republic
• San Marino
• Vatican City
2. What is the deadline to sign up?
We are requiring new plaintiffs from India to complete the engagement letter at
https://gsiskind.app.law/regional-travel-ban-retainer-agreement-generator-1/1115707 AND make their payment to join the case no later than May 15, 2021 at 5 pm central time. We plan on filing the amended complaint and request for Preliminary Injunction shortly after that.
3. What is the legal basis for the suit?
We are challenging the State Department position that they can bar visa issuance on the basis of a presidential proclamation under INA Section 212(f). We have successfully litigated this issue in several other suits including Milligan v. Pompeo (K-1 visas) and Tate v. Pompeo (O-1 visas). We also have successfully litigated this issue with respect to Diversity Visa 2020 (DV-2020) immigrant visas (Aker v. Trump). These cases show that the arguments we have made regarding the illegality of banning visas based on Section 212(f) apply regardless of visa category.
4. What remedy is this lawsuit seeking? What does a win look like?
We are asking the judge to order the State Department to resume processing visas in countries covered by COVID-related travel bans.
If the COVID-related bans remain in effect and a person is not eligible for an exception, she or he would still have to pass through a non-banned country for 14 days before she or he is eligible to enter the United States with her visa.
5. Where is the case filed?
We will file the case in the United States District Court for the District of Columbia.
6. How long will it take to get results?
We are filing a request for a preliminary injunction asking for immediate relief (asking the judge to order the government to take action on these cases right way). If the government chooses, it could adjudicate cases quickly to bring them out of the litigation. This is actually quite common. If the government instead chooses to defend the case, they can typically delay a hearing before the judge by up to 60 days. After a judicial hearing, it will typically take a few days to a few weeks to get a decision. We cannot force the judge to make a decision within a specific timeline.
7. 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 aside from the visa ban, suing the government is not going to solve that.
8. 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. However, we have had good results to date for many our plaintiffs in our prior regional travel ban cases and are hopeful this will continue. We are optimistic but we do not believe it is appropriate to quantify that.
9. What is the charge to participate in the litigation?
Our fee for this litigation is $2000 per plaintiff.
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 and we are not able to offer payment plans or other financing. Please do NOT sign up for this case if you are expecting a refund of fees. Once we have drafted the complaint and filed it with the court, all fees will be considered earned and no refunds will be issued after that point. If we have not filed the case, we may offer a partial refund depending on how much work we’ve done at the time of withdrawal. We are aiming to file the amendment adding India on May 19, 2021.
10. Any problems with US service members being plaintiffs?
In our experience, US service members are not barred from suing a federal agency in their personal capacity. Note that we are not experts on rules and regulations applicable to the military so it might be useful to check with a lawyer specializing in helping service members. We suggest that people consider scheduling a consultation with attorney Margaret Stock at https://www.cascadialawalaska.com/. Margaret is the nation’s foremost expert on immigration law as it affects military members.
In some cases, when the US petitioner is a military service member concerned about suing the government, the clients have decided to have only the foreign national beneficiary be named as a Plaintiff in the suit. If you would like to do this, please let us know.
11. How will communications work?
We have weekly livestreams to brief plaintiffs in our various cases on the progress of the cases 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 be hiring a lawyer on an individual process if you need to do this 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. Links to each firm are provided at the top of this document.
We also do not have the ability to answer your individual emails. We ask that you communicate with us about your cases via a web form we have created for plaintiffs in the case. We would love to answer your individual questions about the case, but we simply can’t get our work done for you unless we are strict about this. We have created a web form that you can use to update us about your individual cases. And you are welcome to post questions in our regular livestreams. Please note that we reserve the right to bill you for our time if you send emails to the legal team. Answering your individual emails means the legal team spends less time working on the case which hurts everyone.
12. 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 cannot be a plaintiff in this case.
13. What is the correct way to update you regarding my case?
Please do NOT send emails to any of the lawyers or staff telling them about your case (e.g. case transferred from the NVC to the consulate, interview scheduled, visa issued, etc.). Instead, please complete the form we will provide you once the complaint is filed each time you have news. Please note that because this case is not a mandamus case, the only issue we will monitor for plaintiffs is whether consulates are using the COVID bans as a basis for refusing to issue you a visa.