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Visa/ SEVIS Fee Litigation

Visa/ SEVIS Fee Litigation

Thank you for your interest in our new lawsuit challenging the State Department and Immigration and Customs Enforcement regarding the collection of fees for visas as well as SEVIS fees.

We will be asking a federal judge to order the payment of damages in order to refund people for fees that should not have been charged as well as partial refunds for excessive visa application fees.

Ready to sign up as a plaintiff?  Go to https://gsiskind.app.law/ead-retainer-agreementfinal .

Why are we suing? What is this case about?

This case is about the government collecting money illegally from visa applicants. There are two groups we’re suing to compensate.

Group I – The government charges a fee for issuing visas called the MRV fee – the machine-readable visa fee. The fee the State Department charges is required to be the amount necessary to provide the service. They can raise the fee if they need to do so in order to cover their costs. Likewise, they are supposed to lower the fee if their costs decrease. This was, in fact, the case in 2013. The US Department of State’s Office of Inspector General issued a report in September 2017 noting that a temporary expense that led DOS to raise its fees was no longer applicable, but the State Department did not lower their fees as required by various fee-governing statutes. The IG told DOS to lower their fees accordingly. However, that instruction was ignored and DOS has been overcharging for these many years. In Fiscal Years 2013 and 2014, as noted in the report, the overcharge was $400,000,000 and $800,000,000 respectively. We do not yet know how much of an overcharge occurred for Fiscal Years 2015 and later.

Group II – Beginning in January 2017, the Trump Administration began to aggressively use Section 212(f) of the Immigration and Nationality Act to keep out large numbers of people seeking entry to the United States. Section 212(f) allows a President to bar the entry of an individual or group of individuals is he or she deems such entry to be contrary to the interests on the United States. In the case, Trump v. Hawaii, a case challenging the so-called Muslim Ban, the U.S. Supreme Court held that President Trump could, in fact, use that authority. The Administration then used 212(f) over and over again to bar people seeking a variety of nonimmigrant and immigrant visas and to bar the entry of people from dozens of countries experiencing Covid spikes. President Biden kept some of these bans in place, though recently the travel ban on 35 countries was lifted. While 212(f) allows a President to ban entries, it does not allow a President to ban visas from being issued. Yet that is what the Trump and Biden Administrations did arguing that 212(f)’s authority permitted this too. That issue was litigated by the lawyers in this case a half dozen times and every judge that reviewed the issue sided against the government. The government charged visa fees as well as SEVIS fees (for F-1 and J-1 applicants) and then denied visas, refused to schedule visa interviews or otherwise delayed visa interviews based on this unlawful interpretation of the law. Individuals who paid visa application fees and/or SEVIS fees are entitled to a refund of such fees because they didn’t get the service they paid for based on this illegal policy. That includes organizations and individuals that paid a visa or SEVIS fee on another’s behalf.

I thought the government can’t be forced to pay monetary damages under sovereign immunity rules. How is it possible here?

We will be suing under a statute called the Tucker Act. The Tucker Act (https://www.law.cornell.edu/wex/tucker_act) allows for certain claims against the government seeking the refunding of fees paid to the government.

Who is eligible to participate?

For Group I, anyone who paid a visa application fee (MRV fee) after January 1, 2016, is eligible regardless of whether the visa was issued or not or whether an issued visa was actually used to enter the U.S. Note that this case does not cover people who entered using a visa-free program such as ESTA.

For Group II, anyone who was denied a visa under INA Section 212(f) is eligible which would include those subjected to the various Muslim travel bans, the nonimmigrant visa ban, the immigrant visa ban, and the country-specific Covid travel bans.

What is the fee to join this case?

There is no fee to join this litigation. The case is being handled on a contingency basis and the law firms handling the case will receive a portion of the fee refunds recovered. That fee will be 25%, an amount that is in the customary range for contingency fee cases. If the case is lost, the attorneys will not be compensated.

Is this case being handled as a class action?

Yes. We will seek class certification which will prevent the government from mooting at this case by paying the damages only to the individuals who are named plaintiffs.

Where will this case be filed?

This case will be filed in the Federal Court of Claims in Washington, DC.

What would a win look like, and what is the timeline? How long will it take to get results?

A win will be an order from a judge for the State Department and ICE to pay the visa fee overcharges to Group I plaintiffs and to completely refund visa and SEVIS fees to Group II plaintiffs. We estimate the case will take one to two years, though it is possible the government will reach a settlement first.

Will there be a risk of backlash if I participate in the case?

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 15 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.

What are the odds of success?

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 various mass cases suing the government over its immigration policies and we believe our arguments are strong. We are optimistic, but we don’t believe it is appropriate to guess about specific odds.

How will communications work? How will I know what is going on with the case?

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. You should hire a lawyer to represent you individually if you require individual communications. We cannot answer your individual emails and phone calls. We ask that you communicate with us about the case 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 immediately is a priority, you should consider filing your case individually.

What if I already have an immigration lawyer?

We are not representing you with respect to your individual immigration case and cannot advise on your individual case strategy. If an attorney already represents you, you should talk about the pluses and minuses of joining the lawsuit and whether it makes sense for you.

What about my petitioner/employer/spouse? Do I need their participation or permission to participate in the case?

No.  The visa application is yours, not your employer’s or your spouse’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. If the employer or sponsor organization paid the visa or SEVIS fee on your behalf, they may also be eligible to participate in the case.


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