AMERICAN IMMIGRATION LAW FOUNDATION DHS INTERIM EAD LAWSUIT. Frequently Asked Questions about Participating in this Lawsuit

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AMERICAN IMMIGRATION LAW FOUNDATION DHS INTERIM EAD LAWSUIT Frequently Asked Questions about Participating in this Lawsuit AILF is considering filing a lawsuit in federal district court against the U.

1 AMERICAN IMMIGRATION LAW FOUNDATION DHS INTERIM EAD LAWSUIT Frequently Asked Questions about Participating in this Lawsuit AILF is considering filing a lawsuit in federal district court against the U.S. Citizenship and Immigration Services (CIS) because of its delay in getting work authorization cards to many applicants who are eligible for them. A federal regulation requires that an interim temporary EAD be granted if the EAD application is not decided within 90 days. The regulation says that the interim EAD may be valid for a maximum of 240 days. EAD applicants whose applications have been pending more than 90 days and who have not received an interim EAD may be able to participate as plaintiffs in this lawsuit. If you are considering being a participant in this lawsuit, you may find the following frequently asked questions and answers helpful. Q: What is AILF? A: The American Immigration Law Foundation (AILF) is a non-profit organization dedicated to protecting the rights of immigrants and refugees and to securing fair and just application and administration of the U.S. immigration laws. In order to achieve these goals, AILF sometimes files lawsuits involving various aspects of immigration law. Q: What is this lawsuit about? A: This suit is about CIS failing to follow its own regulation. The regulation is 8 C.F.R. 274a.13(d). It says that, in general, CIS must decide an EAD application within 90 days. If CIS fails to decide the application within 90days, the regulation requires CIS to give the applicant a temporary interim EAD that will allow the person to work. This temporary card is good for up to 240 days or until a decision is made on the application for the permanent EAD. AILF will argue that the harm to EAD applications is considerable because an interim EAD is necessary for them to work while they wait for the underlying immigration application to be adjudicated. Without an interim EAD, many applicants will lose their jobs or have already lost their jobs or employment opportunities. 918 F STREET, NW WASHINGTON, DC TEL: FAX:

2 Through this lawsuit, we will ask a court to order CIS to issue interim EADs in accordance with its regulation. We may file this lawsuit as a class action to ensure that the problems are resolved for all EAD applicants who are waiting for CIS to decide their primary EAD and underlying immigration applications. Q: What is a plaintiff and how do I know if I am eligible to be a plaintiff in this lawsuit? A: A plaintiff is a person who files a lawsuit against someone else. In this case, an EAD applicant would become a plaintiff by joining this suit against CIS. Eligible plaintiffs for this lawsuit include: Persons who filed an EAD application with CIS in conjunction with another type of immigration relief application (for example, adjustment of status, asylum, cancellation of removal); and whose applications have been pending more than 90 days; and to whom CIS has not issued an interim EAD. Q: Why should I participate in this lawsuit? A: If the lawsuit is successful, CIS should have to issue interim EADs. You will be eligible for the interim EAD (or a renewal of this interim EAD) until CIS decides your primary EAD application and underlying immigration application. You will benefit immediate by having an interim EAD issued. If your underlying immigration application takes a long time to adjudicate, you may need to apply for an EAD again in the future. If the lawsuit is successful, you would avoid a similar delay in having an interim EAD issued. Additionally, other EAD applicants will also benefit. Without plaintiffs, we cannot address and fix the problem. If things are simply left as they are, many applicants for immigration benefits will lose their jobs because they will no longer be authorized to work. We cannot promise that the lawsuit will be successful. However, other efforts to resolve these problems with CIS have not succeeded. For this reason, we believe that a lawsuit is the only remaining possible way to resolve these problems. Q: What does it mean that this case will be filed as a class action? A: We expect that this case will be filed as a class action. This means that we will be asking the court to resolve the case for all applicants whose EAD applications have been or in the future will be pending for 90 days or more without issuance of an interim EAD. Cases are brought as class actions when there are too many parties affected by the case to all be involved individually. If the court allows the case to proceed as a class action, any orders by the court will affect all EAD applicants who are members of the class. 2

3 In a class action, the plaintiffs who bring the lawsuit represent the interests of the other members of the class as well as their own interests. Thus, as a plaintiff, you will be seeking to fix the interim EAD issuance problem for both yourself and for all other EAD applicants who similarly have been harmed. Q: What is likely to happen because of the suit? A: Lawsuits are uncertain by nature. We cannot predict the exact outcome. Our goal is to force CIS to comply with the interim EAD regulation by issuing interim EADs in all qualifying cases. Q: Will participating in this lawsuit hurt my chance of having my primary EAD application or underlying immigration application approved? A: If an individual is otherwise legally entitled to have their primary EAD or underlying immigration application decided, the government cannot deny that benefit simply because the individual participated in a lawsuit such as this. We believe it is very unlikely that CIS will retaliate against individuals for participating in this lawsuit. However, it is possible that CIS may look at your underlying immigration application or your EAD application more closely than they might otherwise. In the unlikely event that CIS tries to retaliate, AILF would bring the retaliatory action to the court s attention and ask the court to order the CIS stop its retaliatory action and/or remedy any resulting harm. We also would ask the court to punish CIS for acting in a retaliatory manner. Q: How much time must plaintiffs spend on this lawsuit? A: Plaintiffs will have to provide us with the information and documentation we need in order to prepare the lawsuit. The lawyers will do most of the work in the lawsuit on paper. Depending on how the case proceeds, the government and its attorneys may want to ask the plaintiffs some questions about their case, either on paper or in person. This is called discovery. One type of discovery is a deposition, which is an interview where parties are asked questions about their cases. Depositions are possible but not common in this type of case. In the unlikely event that discovery and/or depositions were required, an AILF attorney or an attorney working with us would assist plaintiffs to comply with any discovery requests, and would appear with plaintiffs at any deposition. At a later stage, a plaintiff may be required to be present at a hearing or a trial and possibly be asked to testify about their particular case, but this is quite rare. Q: Will it cost me anything to participate in this lawsuit? A: AILF and our co-counsel will not charge any attorney s fees for representing individuals in this lawsuit. AILF and our co-counsel also will pay the costs and expenses associated with the lawsuit, such as filing fees, copying, long distance calls, travel expenses for AILF attorneys and staff, depositions, transcripts, etc. In the unlikely event that an individual should be required to be present at a deposition, hearing or a trial, we may ask that he/she pay their own travel and lodging expenses, if any. 3

4 Q: Will anyone know that I am a plaintiff in this lawsuit? A: Lawsuits are public information, and are available as a public court document. Many courts now have lawsuits and other documents available electronically, accessible via the internet. Also, CIS will, of course, know the identity of the plaintiffs. We also will discuss plaintiffs cases with other lawyers working with us on the lawsuit. It also is possible that the media newspapers, radio, or TV reporters will see the court documents and decide to do a story on the lawsuit. But reporters usually will ask if they can speak to individual plaintiffs before using their names. Q: What should I do if I am eligible and interested in being a plaintiff in the lawsuit? A: We have a questionnaire that you should read and complete. Either complete the questionnaire yourself or contact the lawyer who filed the EAD application for assistance. Please return the questionnaire as instructed, and we will follow up with you. You will also need to send us a copy of all the documents that are listed on the questionnaire. Q: When will I know if I will be a named plaintiff? A. After you complete the questionnaire and send it to us, we will contact you or your attorney about next steps. If you have any questions that are not answered by this FAQ or the questionnaire, please send them to InterimEAD@ailf.org, and we will respond. Thank you! 12/21/06 4

5 AMERICAN IMMIGRATION LAW FOUNDATION QUESTIONNAIRE FOR POTENTIAL PLAINTIFFS DHS INTERIM EAD DELAY LITIGATION This document is a form, which means that you can only type in the areas within each box. Click in the boxes and start typing. If your answers are longer than the box provided, please use a separate sheet of paper. For the check boxes, click in the correct box to mark it. Thank you! Please be sure to include copies of the following with this questionnaire: EAD application Underlying immigration application (forms only) Receipt notice and/or file stamp showing receipt number and date of filing for both EAD and underlying immigration application Any related correspondence (i.e. RFE; NOID; written requests for issuance of an interim EAD; written communication regarding this EAD application from DHS (USCIS), especially any written explanation of the reason for the delay. PLEASE COMPLETE A SEPARATE FORM FOR EACH EAD APPLICATION PENDING MORE THAN 90 DAYS. Date questionnaire is completed: Completed by: Attorney Contact Information: Name Firm Address 918 F STREET, NW WASHINGTON, DC TEL: FAX:

6 Telephone Fax EAD Applicant Information: Name Address Phone Nationality or citizenship EAD Application Filing Information: Date EAD application filed Where was the EAD filed? (Please note the specific DHS(USCIS) office) What was the underlying immigration application (on which EAD application is based)? asylum adjustment of status cancellation of removal temporary protected status other (specify) When was the underlying immigration application filed? Where was the underlying immigration application filed? (Please note the specific DHS(USCIS) office) 2

7 Estimated date of adjudication of underlying immigration application: (For example, if EAD application filed in conjunction with asylum application, what is the actual or expected date of the affirmative asylum interview and/or hearing before an immigration judge? If an adjustment applicant, what is the actual or expected date of interview?) RFE or NOID Did CIS issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)? If so, provide a copy of the RFE or NOID and explain what transpired (your response, their response), including dates: DHS Refusal to Issue Interim EAD: What did the client or attorney do to attempt to obtain an interim EAD. Please explain each attempt and result, including dates: Did DHS (USCIS) expressly inform the applicant or attorney, orally or in writing, or imply why it would not issue an interim EAD? Yes No If yes, please explain in detail: 3

8 Do you have proof of DHS s position? (Yes/No) Yes No If yes, please describe or send if in writing: Harm to EAD Applicant: Please describe any harm that the EAD applicant has suffered or is continuing to suffer due to the lack of interim EAD issuance. Examples might include, but are not limited to, threatened or actual loss of employment, threatened or actual loss of ability to provide financial support for self and/or family members (please provide details of family members, including relationship and immigration status), mental/physical suffering of self or family members due to threatened or actual loss of employment. Please return this form and documents by , fax, or regular mail to: InterimEAD@ailf.org or fax (202) attn. Kate Voigt or regular mail to: Kate Voigt American Immigration Law Foundation 918 F Street, N.W. Washington, D.C /21/06 4

Instructions for Notice of Entry of Appearance as Attorney or Accredited Representative

Instructions for Notice of Entry of Appearance as Attorney or Accredited Representative Department of Homeland Security DHS Form G-28 OMB No. 1615-0105 Expires 05/31/2021 What Is the Purpose of Form G-28?