I-601 Application for Waiver of Grounds of Inadmissibility Litigation FAQ

I-601 Application for Waiver of Grounds of Inadmissibility Litigation FAQ

1. Why are we suing? What is this case about?

We will represent individuals who have filed a Form I-601, Application for Waiver of Grounds of Inadmissibility with USCIS prior to October 1, 2022 for individuals currently outside the United States using Consular Processing.  USCIS’s Nebraska Service Center, the office responsible for adjudicating applications for a waiver of grounds of inadmissibility, is failing to work on these applications in a timely manner. The Nebraska Service Center is currently averaging 27.5 months to complete 80% of the waiver applications, meaning 20% are taking even longer.

The failure to adjudicate I-601 waiver applications in a timely manner means thousands of people are being unnecessarily delayed from consular processing.  Most are suffering due to separation from their family members.

Federal agencies have to act reasonably with due regard to the necessity and convenience of the interested party. We seek an order compelling USCIS to immediately adjudicate our plaintiffs’ applications.  Hopefully, our lawsuit will cause USCIS to change their policies and procedures to ensure that processing times return to the realm of reason.

2. Who are the lawyers filing these cases?

This case is being filed by IMMpact Litigation, a joint venture of the law firms Kuck Baxter in Atlanta, Siskind Susser in Memphis, Joseph & Hall in Denver, and Bless Litigation in Boston. The firms have some of the most experienced immigration lawyers in the country and have now litigated together in more than 30 mass federal cases. IMMpact received the 2022 American Immigration Lawyers Association Litigation Award and the American Bar Association’s James E. Keane Award for the innovative use of technology in managing our litigation.

3. What is the legal basis for the suit?

The case is seeking redress due to a violation of the Administrative Procedure Act, 5 U.S.C. § 706(1), for unlawful withholding or unreasonable delay in the adjudication of I-601 waivers. Federal agencies like USCIS have a legal obligation to process applications in a timely, reasonable manner with due regard to the convenience and necessity of the interested parties.

4. Who is eligible to participate?

Anyone who filed an I-601 application and who is outside the United States awaiting Consular Processing before October 1, 2022, is eligible to participate in this case.

5. What is the fee to join this case?

We are charging $2,500 per applicant to participate in the case. 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. Please note we are moving quickly on filing this lawsuit and aim to file it as soon as we have our first group of plaintiffs onboarded.

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

We have made the decision, as of now, not to handle the case as a class action because we believe the process of certifying a class will slow down our efforts and we may have less flexibility in the types of remedies available to our plaintiffs.

Instead of filing one large class action with one court, we anticipate filing many smaller cases with approximately 15 to 20 plaintiffs each, throughout the United States in various circuits and districts, on a rolling basis. We will be making strategic decisions on which plaintiffs to include in which suits. If for any reason your case is not included in the next complaint filed after you sign up, we will explain the reasons why and when your suit will likely be filed.

7. Where will the case be filed?

As mentioned above, we plan on filing numerous suits seeking relief for individual plaintiffs, in different federal courts throughout the United States. We have yet to determine the location for our first case but we will select the best venue for our clients.

8. What is the deadline to sign up for this case?

Due to the rolling nature of these lawsuits, there will likely be multiple opportunities to sign up to be a plaintiff in this case.  However, based on our prior experience, the first lawsuits will stand the best chance of being resolved prior to a judicial decision, including settlement. Factors such as your location, how quickly the government responds to our complaints, and the results of prior lawsuits will determine the timing of future filings. We reserve the right to decline to proceed with a case for any reason, including not having enough plaintiffs to make a group action viable. Should we decide not to file a case, money will be refunded in full.

9. 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 believe the government is likely to speed up the completion of individual cases soon after filing to “moot out” plaintiffs. 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.

This lawsuit, if successful, will result in a decision on your I-601 waiver application. The decision could be either an approval or a denial. Following a decision on the I-601 waiver application, you will still need to apply for your immigrant visa at a consulate.

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.

11. What are the odds of success?

Litigation is unpredictable by its nature, but I-601 processing times have skyrocketed.  We believe success is achievable and discovery is necessary to show USCIS is not acted reasonably.  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, we are prepared, and we know that success is not guaranteed.  We will work to the best of our ability to win for you.

12. How will communications work?

We will have periodic live streams to brief plaintiffs on the progress of 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 and you are not hiring us as your individual immigration lawyer. You should be hiring a lawyer on an individual process if you need this type of assistance, and 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 at www.immpactlitigation.com.

Again, if getting your individual questions answered is a priority, you should consider filing your case individually. 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 live streams.

13. 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.

In addition, we are not assessing the merits of your case for an I-601 waiver. You and your individual lawyer representing you on your waiver application at USCIS (if you have one), are responsible for having submitted sufficient evidence to establish your eligibility for the waiver. This lawsuit, if successful, will result in a decision on your I-601 waiver application. The decision could be either an approval or a denial. In addition, if your I-601 waiver is approved, there is no guarantee that your immigrant visa application will be approved by the consulate. And there is no guarantee of when your case will be scheduled for an interview at the consulate. To be clear, this case is only seeking a decision on the I-601 waiver application and nothing else.

14. How long will it take to get results?

We could start to see results as soon as the case is filed. That’s because the government often “moots out” cases and gets people out of the litigation by approving their cases quickly. This would likely apply to people who have had their interviews scheduled and it may also accelerate the scheduling of interviews for others.

If we win on the merits or reach a settlement, we expect I-601 adjudications for our plaintiffs to be issued within a few weeks of the settlement or court order. If the government is not moving these cases in a satisfactory manner, we will seek redress from the judge.