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DV-2022 Mandamus Litigation FAQ

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DV-2022 Mandamus Litigation FAQ

Despite losing similar lawsuits in 2021 and 2020, the State Department is failing to timely process winners of the 2022 Diversity Visa Lottery. This FAQ explains our upcoming lawsuit, who is eligible to participate, and what we hope to accomplish. The IMMpact Litigation team will file this suit together.

The deadline to be added to this lawsuit will be March 7, 2022. The legal fee is $2000 per family. If you’re ready to join, the sign up page is here.

1. Who is this lawsuit aiming to help?

We hope to assist DV-2022 selectees who are facing delays at any State Department stage of processing.  This will include individuals in the following situations:

  • DS-260 submitted to KCC but the case has not been sent to the consulate
  • Consulate has received the case but not yet scheduled an interview
  • An interview has been scheduled, but has been canceled or postponed
  • An interview has been held, but the case is stuck in “administrative processing”
  • The visa was issued, but the individual is not able to travel to the US due to travel restrictions, and the consulate has not reissued the visa

This lawsuit does NOT include winners of previous DV lotteries. It also does NOT include DV-2022 winners who are already in the US applying for adjustment of status.

2. What will the lawsuit try to do?

Like our previous DV mandamus lawsuits, we will be asking a federal judge to order the Department of State to adjudicate plaintiffs’ visa applications within a reasonable period of time, and no later than the end of the fiscal year (September 30, 2022).

If the State Department does not process all of our plaintiffs’ visa applications within the fiscal year, we will also ask the judge to “reserve” DV visa numbers so that DV-2022 winners will be eligible to receive their visas after the end of the fiscal year.

3. Why a third lawsuit? What happened with the previous ones?

We had hoped the State Department would resume normal processing of Diversity Visas by now, but unfortunately statistics from October – December 2021 show that the agency is once again behind its targets and is likely to fall far short of the full 55,000 allotted diversity visas by the end of the fiscal year.

Our two other lawsuits for DV-2020 and DV-2021 are ongoing.  For DV-2020 (Aker v. Trump) the federal court combined our lawsuit with several others, and certified a class action and reserved 9,095 additional visas to be awarded to DV-2020 winners.  The judge’s order is currently on appeal at the D.C. Circuit Court of Appeals.  For DV-2021 (Goh v. Blinken), the federal court issued an order on September 9, 2021 ordering the government to make good faith efforts to process DV-2021 visas before the September 30 deadline without reliance on their unlawful tiered priorities. On September 30, 2021, the court ordered DOS to issue 481 additional visas to Goh plaintiffs beyond the end of the fiscal year, in addition to visas for plaintiffs in other similar cases. The State Department has appealed that decision to a federal appeals court, and we will argue that the State Department should be forced to reserve more visas, not fewer.

4. What is the legal basis for this lawsuit, and where will it be filed?

 We will seek a writ of mandamus based on the State Department’s unreasonable delay processing DV-2022 cases. The State Department has failed to work on DV-2022 cases. If it continues this pattern, DoS will likely “waste” thousands of visas just as it did for DV-2020 and DV-2021.

We will also argue that the Department of State is continuing to illegally give DV cases low priority compared to other applications, in violation of prior court orders finding that the DoS “prioritization scheme” is illegal.

We will file this case in the Federal District Court for the District of Columbia, which heard our previous DV lawsuits.

5. What does the timeline look like? How long does it take to get results? What does a win look like?

The case was filed on January 21, 2022.  We are actively adding plaintiffs to the case until March 7, 2022.

We will ask the judge to order the State Department to immediately schedule appointments and adjudicate our plaintiffs’ applications.

The government typically has 60 days to respond to our lawsuit. They will likely request that the judge dismiss the case, and we will respond. Because the case is time-sensitive and related to older cases, it’s possible we will be able to secure an expedited briefing schedule and hearing.  There is no required time frame for the judge to make a decision and we cannot force him or her to rush the case.

6. Could I face backlash if I participate in the case?

We have found over the years that the opposite tends to happen – people who file a lawsuit often get better results than people who don’t, because the government knows they are not afraid to sue.  Over several years and thousands of plaintiffs, we have not heard of any instances of backlash from a government employee.

7. What are the odds of success? 

Lawyers cannot and should not ever promise that a lawsuit will be successful.  The federal court process is unpredictable.  However, we have had good results in our previous DV cases, where the judge has recognized the injustice that applicants are facing.  We hope that this case will be even stronger than previous ones, because the State Department is still refusing to process these cases despite clear court orders.  However, the legal issues in the DV-2022 case will be slightly different and we do not believe it would be appropriate to quantify the odds of success.

Even if the judge orders the State Department to process some or all of our plaintiffs’ applications, this does not guarantee a visa will be issued. If your case has other issues (for example, you are ineligible due to a criminal infraction), suing the government will not help that.

8. What is the fee to participate, and how does it work?

The deadline to join this lawsuit will be March 7, 2022.  The legal fee is $2000 per family.

The fee is a one-time charge. We will not be billing for additional expenses and legal fees unless a particular plaintiff requests an individualized consultation with one of the firms’ attorneys.

The fee is due at the outset. 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.  The fee is for our work preparing and litigating the case; it does not guarantee a particular outcome for the lawsuit or for your individual visa application.

If an individual wants to withdraw before we have filed the complaint, 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 by the end of January.

9. How will communication work?

We email our plaintiffs right away when there is any substantive news about a case.  We also have weekly livestreams where we discuss updates to our lawsuits and answer questions from plaintiffs.

We do NOT have the ability to discuss your individual case situations. You should hire a lawyer individually if you need assistance with your application. You are welcome to hire any of the three firms co-counseling on this case if you need to 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, DMs or phone calls.  We will create a web form for you to share case updates with us.  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.

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

We are not representing you on your individual visa application,l case and cannot advise on your individual case strategy. If you have an attorney for your DV application, you should talk about the pluses and minuses of joining the lawsuit and whether it makes sense for you.

If you are already filing a mandamus lawsuit for your DV application, individually or with another group, you may not join this case.

11. Is this case a class action? Will I benefit if I don’t join the lawsuit?

No.  We will be suing on behalf of our plaintiffs and will not request that the judge recognize a class.  As we have in our previous DV lawsuits, we will request that the judge “reserve” visas beyond the end of the fiscal year if necessary for the State Department can issue all 55,000 diversity visas.  However, courts have not yet agreed to do this, and have reserved smaller numbers.  While it will not be a class action, It is possible that the judge could issue an order that applies generally to DV-2022 applicants.  It is also possible that he could issue an order that benefits only plaintiffs.  For example, in the DV-2021 case, the judge’s order in our favor on September 9 benefited all DV-2021 selectees, while his order in our favor on September 30 benefitted only plaintiffs.  Plaintiffs should understand that participation in the lawsuit cannot guarantee that their applications will be considered ahead of non-plaintiffs.  In addition, even if the judge rules in our favor, it is possible that some plaintiffs will secure visas while others will not.

12. Will this case send me to the front of the line if I have a high DV rank number? 

If your case number is not current when we get a positive decision, you would not be entitled to an immediate interview. However, in FY 2021, the State Department made all DVs “current” in June, meaning that everyone was eligible to process throughout the summer and fall. We cannot promise that the same will happen this year, but we hope all plaintiffs will have an opportunity to process their visas.

If we get a positive result, we will request our plaintiffs with current priority dates cases be adjudicated first or that “visa numbers” be reserved for our plaintiffs over people who did not participate in the lawsuit, but we cannot guarantee that this will happen.

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