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I-601A Delays Mandamus Case Frequently Asked Questions

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

We are looking to assist individuals who have filed Form I-601A, Application for Provisional Unlawful Presence Waivers with USCIS more than six months ago.  We will be suing USCIS because the two USCIS service centers managing those cases are failing to work on these applications in a timely manner. The Nebraska Service Center is currently averaging 28 months for these cases. The Potomac Service Center is taking 37 months.

The failure to adjudicate these applications in a timely manner means thousands of people are being unnecessarily delayed from consular processing and waiting in the United States without the ability to work and have lawful status.  We believe anyone waiting more than six months for adjudication of an I-601A application has a legitimate right to claim their case has been unreasonably delayed because less than five years ago USCIS adjudicated I-601A petitions in less than five months.

Federal agencies have to do their job with regard to the necessity and convenience of the interested party. We will be asking a federal judge to order USCIS to immediately adjudicate our plaintiffs’ applications, and for 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 25 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. Who is eligible to participate?

Anyone who filed an I-601A application before July 15, 2021, is eligible to participate in this case.

4. What is the fee to join this case?

We are charging $1000 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 this lawsuit and aim to file the complaint in December 2022.

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

We are still evaluating whether to file as a “mass” action or as a class action. While filing as a class action can sometimes slow the case down, it also makes it harder for the government to fight on the issue of venue and try and get the case divided up and heard in multiple courts. We will decide on this issue soon.

6. Where is the case being filed?

We have not determined yet where we will be filing the case. That may depend on where are plaintiffs are located and whether we file as a class action or a mass action. There are several principal options, including Nebraska, Maryland, Northern District of Virginia, among others.

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

We anticipate closing signing up to be in the case on December 9, 2022.

8. 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 even before we get in front of a judge in order 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. If the government does not comply with the judge’s order, they risk being held in contempt.

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

9. 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.

10. 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. 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.

11. 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. 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 to talk to an immigration lawyer and do not have counsel already. Links to each firm are at www.immpactlitigation.com.

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.

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.

We also ask that you do not copy us on your emails to the NVC and the consulates. Instead, include correspondence from the consulates on the web for what we are going to provide.

12. 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-601A waiver.  The waiver requires that you establish “extreme hardship” to a qualifying relative and that will be inadmissible during consular processing only for an unlawful presence ground found in section 212(a)(9)(B) of the Immigration and Nationality Act.  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 extreme hardship to a qualifying relative. This lawsuit, if successful, will result in a decision on your I-601A waiver application.  The decision could be either an approval or a denial.  In addition, if the I-601A 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-601A waiver application and nothing else.

13. How long will it take to get results?

We could start to see results soon now that 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. This would likely apply to people who have had their interviews scheduled and it may also accelerate the scheduling of interviews for others. We will file our complaint in December and we expect a hearing on a preliminary injunction within several 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 a couple of months 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. In some cases, a judge will delay this hearing in the expectation that the government will move cases during this wait.

If we win, we would expect visas for our plaintiffs to be issued within a few weeks of the judge issuing his order. If the government is not moving these cases in a satisfactory manner, we will seek redress from the judge in the case. The government can be held in contempt by a judge should they fail to move these cases.

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