Adjustment Delays Litigation FAQ

Adjustment Delays Litigation 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. In particular, the case will focus on Indian nationals who have filed based on I-140s in the EB-2 and EB-3 categories who have faced long delays and have a priority date that became current in the last 24 months. If these cases are not adjudicated by September 30, 2022, tens of thousands of visa numbers that became available in the current fiscal year will essentially disappear and the backlogs for those countries will increase. We are seeking to prevent a repeat of Fiscal Year 2021 when USCIS wasted an estimated 200,000+ green cards.[1]

An estimated 120,000 immigrant visas from FY 2021 that were not used by family-based preference green card applicants “rolled over” to the employment-based categories. If all of those numbers are not issued by September 30, 2022, 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, it is a virtual certainty that the family quota for FY 2023 will be precisely the same regardless of whether the numbers rollover or not. The effect will be a likely net loss of 100,000+ employment-based green cards, with no benefit for family-based green cards.

Furthermore, USCIS does not appear to be adjudicating these cases in a reasonable timeframe. Their statistics show that they are on pace to once again process well under the available number of employment-based green cards by September 30. Reported processing times range from 15 to 20 months 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.  We will ask the judge to force USCIS to process all 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.

2. Last year your lawsuit on this issue was not successful. What is different this time?

Last year, ImmPact Litigation filed the Chakrabarti v. Mayorkas case in the District Court in Maryland. Unfortunately, we never got a decision about the substance of our argument, because the judge ruled at the very end of the fiscal year that the individual cases need to be transferred to the district courts where plaintiffs were residing. We filed emergency requests across the country, and USCIS approved some of our plaintiffs’ cases immediately.. But the majority of our plaintiffs did not receive a decision on the lawsuit before September 30, and the lawsuit became moot.

We believe the Maryland judge was wrong in that case. However, this year we will also request a judge certify the case as a “class action.” If we are successful with that, the court cannot split up the cases and send them all over the country. We are also considering filing several separate suits in the districts where each service center is located. We will make that decision once we see the details for our individual plaintiffs.  We also hope to file earlier in the year, to avoid letting USCIS “run out the clock.”

Note that one court did find that USCIS was required to reserve visas last year. A judge in the Northern District of Mississippi held in Parcharne v. DHS held

The Defendants shall adjudicate the Plaintiffs’ I-485 applications prior to the end of the fiscal year. If unable to do so, the Defendants shall reserve for the Plaintiffs visa numbers from the visa surplus for the 2021 fiscal year.[2]

ImmPact coordinated with the attorney in that case and the plaintiff made identical arguments to those made in our Chakrabarti litigation. This decision will be helpful for us to cite in the new lawsuit.  USCIS has also publicly promised not to waste numbers again, an admission that it did so last year and something we believe will strengthen our case.

3. 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?

Given the published processing times showing expected adjudication times of up to twenty months for adjustment applications, it is very possible another twelve months will pass without adjudication, the numbers will disappear again on no more numbers rollover. That would mean a potentially much longer wait for all applicants. This suit seeks to prevent that.

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 30^th to be reserved for issuance for many of our plaintiffs after the October 1^st deadline.

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

Yes. We will seek class certification as we did in our Aker and Anunciato cases which also dealt with unreasonable delays. If the judge denies class certification (as he initially did in Aker), then only named plaintiffs will benefit.

Furthermore, as noted above regarding 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.

5. 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’s intent that where there is demand, all immigrant visas be used each year. USCIS’ failure to adjudicate cases in a timely manner and the resulting loss of 100,000+ immigrant visas runs contrary to Congress’ intent. We will request a judge reserve the unused green cards for issuance after October 1^st if necessary.

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

We anticipate closing sign-up to be in the case on June 24, 2022. To sign up before the deadline, plaintiffs must fill out their engagement letter, create a declaration, and make their legal fee payment.

7. 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’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 30^th deadline to adjudicate all our plaintiffs’ cases, to reserve all unissued EB-2 and EB-3 visas for issuance after 9/30/2022 so that all the visa numbers are used. This lawsuit cannot guarantee adjustment of status and if a case is deniable for grounds unrelated to the USCIS’ delays, this case will not help.

8. Where is the case being filed?

We are still evaluating where the case will be filed. We will either file it again in Maryland but as a class action where the venue cannot be easily transferred or we will file it in courts based on which service center is handling the case or where the plaintiff lives.

9. 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 in their cases right away. However, in our recent EAD class litigation, USCIS adjudicated all of our plaintiffs cases and sought to moot out the case rather than have a class action decision made that would benefit others. That could happen here too.

We hope to file our complaint by mid-June and we expect a hearing on a preliminary injunction within a few weeks 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 actually a more critical finding than the eventual decision in the case.

If we win, we would expect our plaintiffs’ cases to be processed within a few weeks of the judge issuing his or her order. If the government is not moving these cases in a satisfactory manner, we will seek redress from the judge in the case.

10. 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.

11. 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 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.

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

We are filing an amended complaint to add plaintiffs to this case.  The deadline for joining as a plaintiff is July 22, 2022. The cost is $3000.00. 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.

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 10. IF WE DECIDE NOT TO PROCEED BECAUSE OF THIS, WE WILL REFUND FEES IN FULL W/’ITHIN 21 DAYS.

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.

Plaintiffs in our Chakrabarti case from 2021 are welcome to participate in this suit and will not pay a fee to enter the case. Those individuals should email Greg Siskind at gsiskind@visalaw.com and we will add you to the plaintiff list.

13. How will communications work?

We will 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 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.

14. 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.

15. 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.

[1] https://immigrationimpact.com/2021/10/05/unused-green-cards-biden-2021/#.Yc_C8yyIblY.

[2] Parcharne v. DHS, CIVIL ACTION NO. 1:21-CV-115-SA-DAS.