On May 21st, President Biden signed H.R.7691 – the Additional Ukraine Supplemental Appropriations Act which passed 86 to 11 in the Senate and 368 to 57 in the House.
That bill states that Ukrainians who come as parolees should be treated as refugees under the new law if they entered the US between February 24, 2022, and September 30, 2023. Specifically, they’re entitled to “benefits available to refugees under section 207.” Employment authorization is one of the most basic “benefits” available to refugees. It’s one of the big three DHS lists on its website.
USCIS’ regulations specifically say that people admitted under Section 207 are authorized to work “incident to status.” (8 CFR 274a.12). USCIS’ M-274 I-9 employer handbook specifically says refugees can work with an I-94 and that I-94 can prove ID and employment authorization for up to 90 days and then a social security card and driver’s license are acceptable.
Instead, USCIS is requiring eligible parolees to file I-765s under Section (c)(11) rather than (a)(3) which applies to INA Section 207 refugees. Those people must pay a $410 fee and wait at least 9 months for a decision from USCIS. Again, USCIS should not be charging people at all and allowing them to work right away. See the I-765 instructions which notes that they waive the I-765 fee for refugees. All fees collected ultra vires (meaning, contrary to the statute) since May 22nd should be refunded.
USCIS is rumored to be looking at an e-filing option that will speed up I-765 adjudications for Ukrainians, but, as noted above, this is not what the law requires and is not a good-faith implementation of what Congress just mandated. We are demanding USCIS recognize Ukrainian parolees are eligible to work immediately after arriving and should be able to continue to work with a Social Security Card and driver’s license like refugees can. And to the extent they decide to seek an EAD, they should have the fee waived – just like refugees.
Anyone who entered the US as a Ukrainian parolee after February 24, 2022.
Unlike other suits challenging delays in processing employment cards, we’re arguing that a new bill passed by Congress and signed by President Biden expressly bars USCIS from its current practices. We believe EADs are incorrectly being required before parolees can work and parolees are being charged I-765 fees when they should not. The new law expressly requires parolees be treated the same as refugees and that is how refugees are treated under immigration law.
A win will hopefully be a ruling requiring USCIS to recognize they are not following the new law and they immediately allow all Ukrainian parolees to work as soon they arrive in the US or, if they are already here, they are recognized as work authorized from May 21st. We also will seek USCIS changing the basis for I-765 applications for Ukrainian parolees to (a)(3) refugee status and they no longer charge I-765 application fees for applicants. Finally, for all Ukrainian parolees who paid an I-765 fee after May 21st, we will be seeking a refund of those fees.
Normally, the government has 60 days to respond after we file the complaint with the Court. We expect them to file a Motion to Dismiss, telling the judge that USCIS that we are not correct in our interpretation of the new law. We will respond, and the judge may set a hearing or make a decision without a hearing. This process may take several months, and during that time USCIS will continue to process your applications.
In the meantime, we will likely file a Motion for Summary Judgment, which asks the judge to immediately make a final decision on the case without a trial and order the government to act as we note above. The government will probably oppose this request, and then the Judge may set a hearing or decide the case without a hearing. If the judge approves our Motion, we could win in less than 60 days. If the judge denies our motion, then we keep fighting the case, but it may take months longer. In the meantime, nothing stops USCIS from continuing to process your EAD applications as usual.
Yes. We will seek class certification so that all parolees benefit from the case. If the judge denies class certification, then only named plaintiffs will benefit.
Furthermore, there is a trend towards US Attorneys challenging venue claims 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.
We have not made a final determination as of yet regarding which federal court will be the location for the filing.
Over the years we have seen that the opposite tends to be the case – the government treats people better when they know that they are willing to go to court to defend their rights. In the nearly 25 large federal lawsuits we’ve filed over the past year with several thousand plaintiffs, we have not heard of a single report of government retaliation against a plaintiff.
Any lawyer who promises success in litigation is not serving a client well. Litigation is unpredictable, and we do not have a crystal ball or control over federal judges. We have had success with similar cases and we believe our arguments are strong. We are optimistic, but we don’t believe it is appropriate to guess about specific odds.
We stand with Ukraine and will take this case without charging our plaintiffs. We think USCIS’ actions here are immoral and illegal and getting this injustice corrected is worth it to us. Even if we recover I-765 fees, we will seek to have them refunded completely to those incorrectly charged. We will track our hours and seek to force the government to pay for our time handling the case, but if we do not succeed, we will not charge our plaintiffs.
We will have periodic livestreams to communicate with plaintiffs on the progress in the case and answer questions. We also email clients when there is news on the case.
We do NOT have the ability to discuss your individual case situations. Please note this is a pro bono case and we are trying to address a problem that is affecting all Ukrainian parolees in a similar way. The only way we can manage a pro bono mass case like this is if our plaintiffs understand on the front end that we cannot provide individual assistance to them. This means we cannot answer your individual emails and 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. You are also welcome to post questions in our regular livestreams. In addition, we will not be representing you directly before USCIS or any other government agency. This means that we will not be communicating directly with the agency about your case, nor will we be authorized to do so. Any communications with the government about your case will be through court filings or communications with attorneys representing the agency in court.
We are not representing you with respect to your individual case and cannot advise on your individual case strategy. If an attorney already represents you in your work permit application, you should talk about the pluses and minuses of joining the lawsuit and whether it makes sense for you. Note that this is NOT a mandamus lawsuit so if you are already independently pursuing a mandamus action, you may be able to continue with that case. But you should discuss with your lawyer.