This FAQ explains a proposed mandamus lawsuit challenging K-1 visa processing delays at the US consulate in London, United Kingdom. The ImmPact Litigation team (comprised of the law firms Kuck Baxter, Joseph & Hall, and Siskind Susser) proposes to jointly file this suit.
- Who is the lawsuit aiming to help?
This lawsuit will help K-1 applicants who plan to apply for visas at the US Consulate in London, United Kingdom, and who already have an I-129F petition approved by USCIS.
This includes people in all of the following situations:
- An I-129F has been approved, but the case is stuck at the National Visa Center;
- The NVC sent the case to the consulate, but a visa interview has not been scheduled;
- The interview has been scheduled and cancelled or postponed;
- The interview has happened, but the case is stuck in administrative processing;
- The K-1 visa was issued, but because of travel restrictions, the K-1 beneficiary was unable to travel before the visa expired and the consulate has not reissued the visa.
We will request that the judge order the State Department to process all the plaintiffs’ cases within a reasonable time frame. This lawsuit cannot guarantee that all visa applications will be approved.
Note as well that this lawsuit does NOT cover cases that are pending or stuck at USCIS. If USCIS has not yet approved your I-129F petition, you are not eligible to be a plaintiff in this lawsuit.
You do not need to be a subject of the United Kingdom to participate in this lawsuit, as long as your case is being processed in London.
- What is the deadline to sign up?
The sign up deadline has been extended to Monday, June 14. By this time, we need to receive your signed engagement letter, declaration, and payment to join the case.
Once we have the minimum number of plaintiffs signed up, we will begin drafting the lawsuit. We are usually able to file the suit within two weeks of the sign-up deadline; however, we cannot promise or guarantee that we will file by a particular date. Our priority is to file the strongest case possible and we will not file until we are confident in our work.
- I’m already a plaintiff in the Kinsley v. Blinken suit. Should I sign up for this new case as well, and how could it help me? Do I have to pay a separate fee? Do I have to complete a new declaration?
This suit is separate from Kinsley and we encourage eligible couples to participate in both suits. You do not have to be a Kinsley plaintiff to participate in this new suit. Eligible Kinsley plaintiffs may participate in the new suit, but are not required to.
The Kinsley lawsuit is an ongoing challenge to the State Department’s policy of refusing to process visas in countries subject to regional travel bans, including the United Kingdom. The State Department recently announced that all K-1 applications are covered by a National Interest Exception, and that consulates in travel ban countries should resume processing K-1s.
However, our Kinsley plaintiffs in London are continuing to receive generic messages and have not seen movement on their cases. Therefore, this new lawsuit includes a mandamus claim to challenge unreasonable delays by the State Department in processing K-1s in London. We cannot add a mandamus claim to the Kinsley suit because it includes many different visa types in different stages of processing at dozens of consulates. In response to feedback from many of our Kinsley K-1 London plaintiffs, we are offering the option to join this separate mandamus lawsuit, which we hope will force the consulate to promptly adjudicate your cases.
Because we have already gathered some of the information on your case from Kinsley, there is a small labor savings on our part and we can offer you a discount to join the new lawsuit. Kinsley plaintiffs are able to join the lawsuit for a reduced fee of $2000.
If your situation has not changed since you sent us your declaration for Kinsley, please email our new legal assistant Gracie Roper (email@example.com) to let her know to re-use your declaration. You will not have to send a new declaration. If you’ve encountered new hardships and/or your case has moved forward since you sent us your Kinsley declaration, please send us a new one one. You can either edit the previous declaration you sent us, or you can use the new declaration builder app.
- What is the legal basis for the suit?
Government agencies have to do their jobs. For the State Department, that includes processing visa applications. A mandamus lawsuit is a challenge to unreasonable delay, and a request to a federal judge to force the government to do its job promptly. We will request that the judge order the State Department to resume timely processing of K-1 cases at the London consulate and to immediately process all the plaintiffs’ cases.
The State Department states that 30 to 60 days is a normal timeframe to adjudicate K-1 cases, but is largely ignoring that guideline. While COVID-19 has been a challenge, every other agency in the immigration system including USCIS, ICE, CBP, the Labor Department and the Immigration Courts have adapted and are largely functioning as normal. The State Department has made virtually no changes in a year and has not indicated any intention to do so. While other consulates have resumed processing K-1s, the consulate in London has been very slow to resume normal operations.
We have also just learned that in response to several plaintiffs’ inquiries, the London Consulate has responded by saying that it is simply not processing K-1 visas. We know that is not true because many of our Milligan plaintiffs are, in fact, receiving interviews now.
We will file the lawsuit in the Federal District Court for the District of Columbia.
- What remedy are we seeking? What does a win look like?
We will ask the judge to order the State Department to immediately process the plaintiffs’ applications, promptly schedule interview appointments, and issue visas for approved cases.
This does not mean that all the plaintiffs’ cases will be instantly set for interview or that they will all be approved within a specific time frame.
- Is this a class action? Will I benefit from the suit if I don’t sign up?
If you want your case to be processed promptly, you should sign up for the lawsuit.
The judge may order the State Department to resume promptly processing all K-1 visas in London. If that happens, traditionally plaintiffs’ cases get priority over those who do not participate in the lawsuit. It is also possible that the judge will only order the State Department to process the plaintiffs’ cases. If that happens, people who did not participate in the lawsuit will likely not see any benefit at all.
This lawsuit is NOT a class action. A class action lawsuit is slower because it requires the additional step of requesting the court to “certify” a specific class. Because we want this suit to move quickly, we are representing only the plaintiffs. We cannot promise that the lawsuit will benefit people who are not part of the case.
- What happens after we file the suit, and how long will it take to get results?
Filing the lawsuit will not immediately force the government to take any action.
The government sometimes responds to these lawsuits by attempting to move the plaintiffs’ cases quickly to make the litigation moot. In recent similar cases, however, we’ve seen that the government is choosing to fight back instead.
We have recently learned that the government is filing Motions to Dismiss in all mandamus cases against the Department of State, requesting that the court throw the case out as legally insufficient. We are fighting these Motions and we are optimistic that the judge will not dismiss our cases, but this means there likely will not be an immediate resolution on the case.
If the judge denies the Motion to Dismiss, the next stage will be a Motion for Summary Judgment, where we will ask the judge to grant our mandamus request as a matter of law. There is no timeline for a judge to make a decision on the Summary Judgment motion.
- 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 (such as a history of fraud, criminal record, etc), suing the government is not going to solve that.
- 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 most our plaintiffs in the Milligan v. Pompeo K-1 case and are hopeful this will continue for our plaintiffs in similar cases targeting specific consulates. We are optimistic, but also we do not believe it is appropriate to quantify that.
- What is the fee to participate in the litigation?
Our legal fee is $2500 per couple. Current Kinsley v. Blinken plaintiffs or active duty military service members will receive a $500 discount, for a total fee of $2000 per couple.
This fee is contingent upon a minimum of 100 couples signing engagement letters (update June 4: we now have over 100 couples signed up, so we plan to go forward with this suit unless many couples drop out at the last minute). If fewer couples sign up, we reserve the right to decline representation and return the fees. We may also offer to continue the litigation with a higher fee per couple; each couple may then choose to pay an additional fee or request a full refund.
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 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.
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. Please note we are moving quickly on this lawsuit and aim to file the complaint within two weeks after the end of onboarding.
- 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 couple has 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.
- How will the attorneys communicate with me about the case?
We have periodic livestreams to brief plaintiffs on the progress in the case and answer questions. We also send 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. Remember, you are hiring us to sue to the government to force your case to move at a reasonable pace. You are not hiring us to be your immigration lawyers or help you resolve problems particular to your case.
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 will create 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. You are also welcome to post questions in our regular livestreams.
- 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.