IV Ban Litigation FAQ – By Greg Siskind (firstname.lastname@example.org)
1. Who is the lawsuit aiming to help? We are looking to assist people who have not been able to immigrate to the US as a result of the ban on immigrant categories covered in Presidential Proclamation 10014. This includes people in the following categories: facing delays at any of the State Department stages of processing. That would include people in the following categories: • Parents of US citizens • Spouses, children and siblings being sponsored in the Family Preference categories • EB-1, EB-2, EB-3 and EB-4 employment-based applicants • Diversity Visa winners A court has recently ruled in National Association of Manufacturers v. DHS that a similar Proclamation barring nonimmigrant visas (Presidential Proclamation 10052) is illegal and we believe that a similar argument would likely be successful in a case challenging PP10014. We will also seek a ruling that a presidential proclamation based on INA Section 212(f) cannot bar the issuance of visas. So if your case also involves a visa ban based on the coronavirus (the 14-day ban), we hope to resolve that issue as well with this suit.
2. Who are the lawyers in this suit? The law firms Joseph and Hall in Denver, Kuck Baxter in Atlanta and Siskind Susser in Memphis are co-counsel on this case as they have been on the mass litigation cases Aker v. Trump and Milligan v. Pompeo. Kuck Baxter founder Chuck Kuck is a former president of the American Immigration Lawyers Association (AILA). Jeff Joseph of Joseph and Hall is currently the Secretary of AILA and will rotate in to the presidency. Greg Siskind of Siskind Susser is the author of numerous books on immigration law and is on the Board of Governors of AILA.
3. What is the legal basis for the suit? While we don’t want to get into detail about strategy lest we tip our hand too early to the government’s lawyers, we will rely on similar arguments made in our case in Aker v. Trump as well as the arguments successfully made in NAM v. DHS.
4. What remedy is being sought by the litigation? What does a win look like? Simply speaking, we are seeking to overturn the PP 10014 and reopen processing for all immigrant visa cases held up because of that ban. We will also seek to remove the barrier from the 14-day ban which bars the issuance of visas if one is subject to that ban. The case will not be able to force consulates not operating because of COVID to reopen, but we will seek to force the State Department to transfer cases to consulates which are operating.
5. Is the case being handled as a class action? We will seek class certification as we did in the Aker case. If the judge denies class certification (as he initially did in Aker), then only named plaintiffs will benefit.
6. Where is the case being filed? We intend to file the case in the Northern District of California where the NAM case was filed.
7. How long will it take to get results? We could start to see results shortly after filing the case (which will likely be a couple of weeks after we have our plaintiffs’ group lined up). 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. The suit is likely going to be filed a few weeks after we have our plaintiff group lined up. The speed with which we’re able to get declarations from the plaintiffs will affect how quickly we are able to file as well so we will be working with people to try and keep that process moving along expeditiously. After we file, we expect it will take a few days or weeks to get to the point where we have a hearing on our motion for a preliminary injunction. This 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. If we win, the amount of time your case will take to get to completion will depend on where you are in your current processing and the capacity of the specific consulate. People still at the KCC could still be waiting a few months to get completed whereas people who have already been interviewed should see a quick issuance of a visa. 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.
8. 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.
9. 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 do know this Administration has a poor track record when it comes to prevailing in court and we also believe our arguments are strong and have been bolstered by what we have learned in the Aker v. Trump and the NAM v. DHS cases. So we are optimistic. But we do not believe it is appropriate to quantify that.
10. What is the charge to participate in the litigation? We are charging $1000 to participate in the case. That 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 engaging us, we would be able to offer a partial refund. However, once the complaint has been filed, the fees will have been considered earned and we will not be offering refunds after the complaint is filed. To illustrate, if after filing, a person’s case is approved or scheduled for an interview, the odds are high that the main reason the person got to this point is that the government is seeking to “moot out” the plaintiff, a result that is intended by our filing the suit. Thus, the fees are for us to complete work to file the complaint. Once that is done, the fee shall have been considered earned.
11. How many plaintiffs do you need to have and when will the decision be made to proceed? We have decided that in order for this matter to be financially viable for the three firms to pursue this litigation, we need to have 100 retained clients. We have already well-exceeded this number as to people requesting more information from us so we are hopeful we will reach this number. But until we have 100 signed engagement letters, we will not proceed. We plan on making that decision the week of October 10th.
12. Any problems with US service members being plaintiffs? In our experience, US service members are not barred from suing a federal agency in their personal capacity. Note that we are not experts on rules and regulations applicable to the military so it might be useful to check with a lawyer specializing in helping service members. We suggest that people consider scheduling a consultation with attorney Margaret Stock at https://www.cascadialawalaska.com/. Margaret is the nation’s foremost expert on immigration law as it affects military members.
13. How will communications work? We will have a weekly Zoom call to brief plaintiffs on the progress in the case and answer questions. We don’t have the capacity to speak to clients by phone as questions arise and request that people either email their questions or wait until the weekly Zoom call. But we have found the Zoom calls have been very successful in allowing our plaintiffs to get their questions answered.
14. 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.
15. Can DV-2020 winners participate in the suit? Possibly. If you are a DV-2020 winner who was NOT a named plaintiff in the recently decided cases in the District Court of DC (Aker/Fonjong/Mohammad/Gomez/Kennedy) and who has HAD a DV-2020 visa previously issued, you may participate in the case. We will not be focusing on a demand for more numbers than the 9,095 visas ordered to be issued by Judge Mehta in the DC cases (as we have no legal basis to do so).
16. Can DV-2021 winners participate in the suit? Yes. We are accepting DV-2021 winners regardless of whether their priority date is current. We believe dates will become current for all or virtually all DV-2021 winners based on prior years and we also know from our success in Aker v. Trump that plaintiffs who had high case numbers were still able to get visas issued in that litigation. We cannot guarantee, of course, that you will benefit from the case and get a visa, but we believe there is a possibility to benefit.