The Interview

One of the biggest trends in Immigration Law has been the increase in Federal Litigation. Travel Bans, Improper Denials, and Agency Rule-Making led to a flurry of lawsuits and almost daily Federal Court decisions in all areas of Immigration Law.

Three of our colleagues and their firms decided to pool their resources to pursue impactful litigation, including hundreds of plaintiffs — Greg Siskind (Siskind Susser, P.C., Memphis, T ennessee), Jeff Joseph (Joseph & Hall P.C., Aurora, Colorado), and Charles Kuck (Kuck Baxter Immigration Partners LLC, Atlanta, Georgia). Out of this came great results, such as the K-1 delay lawsuit (MILLIGAN et al v. POMPEO) and injunction [limited to plaintiffs], forcing the National Visa Center to forward the case to the Embassies to schedule K-1 interviews in countries subject to the various Covid-19 bans.

The decision in Milligan was especially interesting because of the powerful argument made by this trio regarding INA 212(f), which is a major basis of a president’s power to issue a travel ban. They argued that the statute does not prevent an Embassy or Consulate from issuing a Visa to an applicant subject to a ban; rather, it prevents their physical entry into the United States. of Labor’s new Prevailing Wage rule and a challenge on behalf of Diversity Visa lottery winners.

This groundbreaking cooperation made it easy for them to be chosen for the inaugural cover of the Immigration Lawyers Toolbox Magazine. The Immigration Bar, unlike other fields, is unique in its ability to put aside competitive urges to support clients and the larger cause. The following are snippets of an interview about their current and future work in this space.

[Immigration Lawyers Toolbox] Do you think the need for litigation will end or stop with the new president?

[Greg Siskind] While we expect the new administration to be a breath of fresh air compared to the Trump years, we’re realistic enough to know that there will be instances where the White House and the agencies will overreach or fail to adjudicate cases in a reasonable and timely manner. Litigation will still be needed to ensure good government.

Greg Siskind, Esq.

Siskind Susser P.C. (gsiskind@visalaw.com)

[Jeff Joseph] I do not think that litigation will go away with a change in administration. While it is clear that the Biden administration has very different priorities when it comes to immigration policy, it is also true that Democrats have been, historically, very protective of the U.S. workforce, and so a Biden administration is likely to continue to push for changes in how the Department of Labor calculates wages for foreign workers. I would also not be surprised to see the Biden administration push for H1B reform as well as H2B and H2A reform. Depending on what changes are made, we may need to litigate to protect the viability of the H programs for employers.

Additionally, there is still so much to unravel from the Trump administration that we are going to see significant backlogs at the Consulates and Service Centers. The NIV bans and IV bans have created a log jam at Unacceptably slow processing the agencies and we could see significant delays in consular times will likely processing and adjudications at the Service Centers. This will continue and demand increased mandamus delay litigation.

The reality is that — litigation as a tool for immigration clients has always been around as an option — Now it is a necessity.

[Charles Kuck] The New President will be a source of new litigation, mostly because the problems put into place by Trump are not necessarily quick fixes. On top of that, President Biden has not shown the type of leadership, at least as of yet, that leads us to believe that he will end many of the discriminatory, nativities policies and proclamation put into place by Trump. The reality is that—litigation as a tool for immigration clients has always been around as an option—Now it is a necessity.

[ILT] What other issues do you think require litigation?

[Siskind] We’re not done with the bans and we may need to keep litigating until they’re history. And unacceptably slow processing times will likely continue and require litigation. We also will need to continue litigating midnight Trump rules to ensure that they are invalidated in case the Administration isn’t able (or willing) to stop them.

[Joseph] We will continue to see litigation surrounding the DOL wage rules as well as any changes that come about to the H-1B, H2B and H2A programs. We will also see increased amount of mandamus delay litigation as backlogs at the Consulates and Service Centers continues to grow.

Jeff Joseph, Esq.

Joseph and Hall P.C. (jeff@immigrationissues.com)

[Kuck] The bans clearly still need to be extensively litigated. But there has not been enough litigation on the intentional stoppage by USCIS of the issuance of EADs (for a variety of non-immigrants), receipt notice delays, terrible and illegal decisions pertaining to nonimmigrant and immigrant visa eligibility, asylum eligibility, and even removal relief. Congress has created a system that those that run the system can manipulate it too easily. We need to litigate and seek court oversight in order to strengthen the very fundamentals of the system.

[ILT] How did you set up the litigation cooperation system?

[Siskind] To date, it’s been about who has available manpower for the different aspects of the litigation with a 5 to 10 person team on each case. We’ve set up an internal listserv to facilitate communications between the firms and have informally. We’re learning on each case how to improve things and we’re also fortunate to have multiyear close relationships that make it feel like one firm.

[Joseph] It is very hard for a small immigration firm to take on mass actions or class actions. To address the challenges, we established as a partnership between three different law firms: Joseph & Hall P.C., Kuck Baxter Immigration LLC, and Siskind Susser, P.C. By combining forces, our three firms are able to split up the tasks that go into large-scale litigation and leverage our joint resources to make the litigation viable, efficient and successful. After litigating a few cases together, we decided to make the relationship more formal and have launched ImpactLitigation.com, an organization devoted to impact litigation in the immigration context. We hope to continue to partner in the future on impact-level litigation.

“It is very hard for a small immigration firm to take on mass actions or class actions. ”

[Kuck] First, it was important to have a level of trust between the partners. Decades of friendship and mutual admiration, building upon shared meals, calls, and advice gave rise to a desire to work together more closely on a shared purpose—holding the government accountable. The systems to do this were created by modern technology — listservs, document sharing, website, and, yes, even Zoom! From there it is merely a question of improving each other’s works to create a product (and an outcome for our clients) that enables to think bigger and more profoundly of the work we can do to make all immigrants lives (and cases) better.

Charles Kuck, Esq.

Kuck Baxter Immigration Partners (ckuck@immigration.net)

[ILT] How is it managing such a large clientele base (with these group lawsuits)?

[Siskind] It’s certainly a challenge, but we’re doing a lot of pioneering when it comes to using tech to help. We have automated most of the plaintiff on-boarding process including generating engagement letters and declarations. We have forms to streamline communication from the plaintiffs to the legal team. We’re using mass email software to keep clients updated as well as live streaming on Facebook and Zoom on a regular basis.

[Joseph] It is very challenging. For example, in the Milligan case, we have nearly 500 couples from around the world at various stages of K-1 Consular Processing. The first challenge was identifying plaintiffs. For that, we relied largely on social media. By tweeting out a call for plaintiffs, we were able to gather sufficient plaintiffs to spread out the costs and make it cost-effective for plaintiffs while at the same time lucrative for the law firms.

We have automated the on-boarding process to the greatest extent possible. Prospective clients are able to complete a questionnaire that gathers the information we need for the lawsuit and then exports the information to an excel spreadsheet which we later use to track progress in each case. Plaintiffs can make payments online through a payment portal and we accept all forms of payment.

We also have automated the process for creating declarations for plaintiffs such that we insert the prompt and they are able to answer the prompt in prose that can be turned into the declaration we use to support the request for the TRO. By automating as much of the process as possible, we cut out the back and forth between plaintiffs.

Work is divided between the firms in the following way: One firm takes on the drafting of the complaint, TRO, motion for class certification and other necessary pleadings. Another firm is in charge of gathering the money, issuing representation agreements and coordinating the on-boarding process. The third firm is in charge of gathering and finalizing the declarations. By dividing up the work in this way, no single firm is overwhelmed with the work of major litigation.

[Kuck] I would start with a smiley face, but really it is just a question of first setting expectations—what are we the lawyers FOR, and will we and won’t we do as part of the representation.

...it is just a question of first setting expectations—what are we the lawyers FOR, and will we and won’t we do as part of the representation.

Then, again using technology like Google Docs, Facebook and Facebook Live, Zoom, Twitter, emails, and Excel to maintain consistent communications with our clients to make sure they know that individually, they are important to us, but that we are representing the class as a whole. We also urge them to work with their regular immigration attorney to use the victories we obtain to finish pursuing their case.