Can You Recover Legal Fees After Beating USCIS in Court?

If you sue the government over an immigration delay or denial and win, the Equal Access to Justice Act may require the United States to pay your legal fees. The rule has conditions that defeat most immigration fee claims, and the most common defeat comes from success itself: when USCIS decides the case after you file and the court dismisses the suit as moot, you usually have not prevailed in the sense the statute requires. Understanding when you can recover legal fees, and when you cannot, should be part of the decision to file. CLP’s federal court and appeals practice raises the fee question at intake so clients budget with open eyes.

What the Equal Access to Justice Act does

The Act, codified at 28 U.S.C. 2412(d), lets a party who wins a civil case against the United States recover attorney fees and costs unless the government shows that its position was substantially justified or that special circumstances make an award unjust. It applies in district court and in the courts of appeals, so it reaches mandamus and APA suits, habeas petitions, and petitions for review of Board decisions. It does not apply in immigration court or before the Board, which are administrative proceedings outside the statute.

Fees are capped at a statutory hourly rate adjusted for the cost of living, with a higher rate possible when a special factor such as the limited availability of qualified counsel is shown. The award is paid to the client, not the lawyer, and can be offset against debts the client owes the federal government.

When you can recover legal fees: the four conditions

• You must be the prevailing party. That means a court-ordered change in the legal relationship between you and the government: a judgment in your favor, a court-ordered remand, or a settlement the court enters as an order.
• The government’s position must not have been substantially justified. The test is whether it had a reasonable basis in law and fact, and the court looks at both the agency’s conduct and its litigation position. The government bears the burden on this point.
• You must meet the eligibility limits. Individuals above a statutory net worth ceiling, and businesses above a separate ceiling or employee count, are excluded. Most individual immigrants qualify; some employer petitioners do not.
• You must apply within 30 days after the judgment becomes final and unappealable, with an itemized statement of hours and rates.

The mootness problem in mandamus cases

Most mandamus and delay suits end the same way: USCIS or the State Department decides the application within the government’s response period, the parties stipulate to dismissal, and no judge orders anything. Under the Supreme Court’s decision in Buckhannon, a defendant’s voluntary change of conduct, even one plainly caused by the lawsuit, does not make the plaintiff a prevailing party. Courts apply that rule to the Equal Access to Justice Act. The result is that the typical successful mandamus plaintiff pays their own fees.

There are exceptions. If the court enters an order directing the agency to decide by a date, or so-orders a settlement that sets a decision deadline, the judicial stamp is present and fees may follow. Counsel can sometimes negotiate such an order rather than a bare dismissal. The possibility is real but should not be assumed when deciding to file; see how courts decide whether a USCIS delay is unreasonable for what drives the merits.

FOIA cases follow a different rule

The Freedom of Information Act has its own fee provision, and Congress amended it in 2007 to reverse Buckhannon for records cases. A FOIA plaintiff substantially prevails either through a court order or through a voluntary or unilateral change in the agency’s position, as long as the lawsuit caused it. If an agency produces your file only after you sue, fees are available in a way they would not be in a delay suit over the same file. The court still weighs the public benefit of the request, your interest in the records and whether the agency had a reasonable basis for withholding. Our immigration FOIA requests page explains when litigation becomes necessary.

Petitions for review and remands

In the court of appeals, a remand to the Board for further proceedings generally makes the petitioner the prevailing party, and fees turn on whether the government’s defense of the Board’s decision was substantially justified. Where the Board ignored evidence or applied the wrong legal standard, courts have awarded fees. Where the law was genuinely unsettled, they often decline. The fee application is filed with the court of appeals, on the same 30-day clock.

Planning around fees

Treat a fee award as a possible recovery, not a financing plan. Ask your lawyer to document hours from the first day, to seek a so-ordered deadline rather than a bare dismissal where the court will allow it, and to calendar the 30-day application window the moment judgment enters. If the economics of a suit depend on a fee award, the honest answer is usually that the suit should be filed only if it is worth its cost without one.

If you are weighing a federal suit against USCIS or the State Department and want to know how fees would work, a consultation with Capitol Law Partners can set realistic expectations. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our immigration appeals and federal court page or schedule a consultation.