K-1 Moscow FAQ

Posted on: April 11th, 2021
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K-1 Litigation FAQ for Moscow Plaintiffs–

By Greg Siskind (gsiskind@visalaw.com)

Version date – 4/28/2021

This FAQ relates to proposed mandamus litigation challenging K-1 visa processing delays at the US consulate in Moscow, Russia.  The case will be filed jointly by the ImmPact Litigation team comprised of the law firms Kuck Baxter, Joseph & Hall, and Siskind Susser.

 

  1. Who is the lawsuit aiming to help?

 

We are looking to further assist K-1 applicants facing delays at any of the State Department stages of processing.

Our new action filing will include people in the following situations:

  • An I-129F has been approved, but is stuck at the National Visa Center
  • The case is at the consulate, but an interview has not been scheduled
  • The interview has been scheduled and cancelled at least once
  • 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 ask the judge to order the State Department to process all the plaintiffs’ cases in a reasonable time frame. This lawsuit cannot guarantee that your visa will be issued.

This lawsuit does NOT cover cases that are pending at USCIS or stuck at USCIS. If USCIS has not yet approved your I-129F, you are not eligible to be a plaintiff in this lawsuit.

 

  1. What is the deadline to sign up?

 

We are requiring plaintiffs to complete the engagement letter AND make their payment to join the case no later than May 4, 2021 at 5 pm Central time.

We plan on filing the amended complaint and request for preliminary injunction shortly after that. Typically, we need 7 to 10 days to file a case after the plaintiff deadline. However, it sometimes takes a little longer , so we do not promise to file the case by a particular date. Our priority is to file the strongest case possible and we will hold off on filing if we are not comfortable we are at that point.

 

  1. What is the legal basis for the suit?

 

We will be asking a federal judge to force the State Department to resume the Moscow Consulate’s processing of K-1 visas in a timely manner.  One of the State Department’s official duties is to adjudicate visa applications and issue visas. The writ of mandamus is a legal order from a court to force a covernment agency to do its duty; a government agency may not simply ignore or refuse to adjudicate applications. Right now, we believe the State Department is not doing its duty to adjudicate K-1 applications, and the delays at the Moscow consulate are particularly troubing.  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.

 

  1. What remedy is being sought by the litigation? What does a win look like?

 

We are seeking an order from the judge requiring the State Department to immediately schedule appointments and adjudicate the applications of the plaintiffs in our litigation.

If we win, the National Visa Center will resume processing cases and promptly sending them to the Consulate. The Consulate will resume a regular interview schedule and will adjudicate visa applications within a reasonable time of receiving them from the National Visa Center.

 

  1. Where is the case being filed?

 

We will file the case in the District Court for the District of Columbia.

 

  1. How long will it take to get results?

 

We will file a request for a preliminary injunction asking for the judge to immediately order the State Department to resume normal visa processing. If the government chooses, it could adjudicate individual cases quickly to make the lawsuit irrelevant. This is actually quite common. If the government chooses to fight back instead, they can typically delay by up to 60 days an opportunity to argue the case in front of a judge. After a judge’s hearing, it will typically take a few days to a few weeks to get a decision on the preliminary injunction.  We cannot force the judge to make a decision within a specific timeline.

Each individual visa application is on its own timeline, so we cannot promise you when your visa application will be adjudicated. It will depend on where your case is currently (stuck at the NVC vs already interviewed but visa not yet issued), and on any individual issues that may slow your case down (such as background checks, complex immigration history, problems with your medical exam, etc).

 

  1. Will this case help all Moscow K-1 applicants or only plaintiffs?

 

We will ask the judge to order the State Department to resume normal K-1 visa processing in Moscow.  If that happens, all K-1 visa applicants will benefit, though traditionally those who participate in a lawsuit like this will get priority over similar applicants who did not.  It is also possible that the judge will only order the State Department to process the plaintiffs’ visas, in which case those who did not participate in the suit will not benefit at all.

 

  1. 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 other than unreasonable delay (for example, the visa applicant has a complex immigration history or criminal background), suing the government is not going to solve that.

 

  1. 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 of our plaintiffs in the Milligan v. Pompeo K-1 case and are hopeful this will continue for our plaintiffs in similar cases. We are optimistic, but also we do not believe it is appropriate to quantify that.

 

1o. What is the charge to participate in the litigation?

 

We are charging each couple $2500 to participate in this case.

THIS FEE IS CONTINGENT ON 100 COUPLES SIGNING ENGAGEMENT LETTERS TO PARTICIPATE IN THE CASE. IF THAT GOAL IS NOT REACHED, WE RESERVE THE RIGHT TO DECLINE REPRESENTATION AND RETURN THE FEES. This means that if fewer than 100 couples sign up, we will immediately refund all legal fees.

The fee is a one-time charge and we will not bill 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. Certainly, 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 a  week or two after the sign-up deadline.

 

11. 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.

 

12. How will communications work?

 

We have periodic 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. 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 page. 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 individual immigration lawyers or help you resolve problems particular to your case.

We also do not have the ability to answer your individual emails. Once the case has been filed, we will provide a web form to provide updates, and you are welcome to post questions in our regular livestreams. We would love to answer your individual questions about the case by email, but we simply can’t get our work done for you unless we are strict about this.

 

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

 

If you are already independently pursuing a mandamus action, you would not be able to be a plaintiff in this 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 your attorney agrees, it is fine for them to continue representing you on your individual case and for us to represent you in the mandamus lawsuit.