Volkova v. United States Citizenship and Immigration Services
1:23-cv-07565
E.D.N.YApr 14, 2025Background
- Plaintiff Anastasiia Volkova, a Ukrainian national paroled into the U.S. following the Russian invasion, paid a $410 fee for a work permit application before subsequent legislation entitled her to fee-free processing.
- The Additional Ukraine Supplemental Appropriations Act (AUSAA) was enacted, making certain Ukrainian parolees eligible for benefits and automatic work authorization.
- USCIS later revised its policy to no longer charge fees for initial employment authorization for eligible Ukrainian parolees and launched a refund program for those charged prior to the policy change.
- Despite the refund program, Volkova sued to recover the fee she paid before AUSAA and sought class action certification for similarly situated parolees who had not received refunds.
- The court was tasked with deciding whether Volkova's proposed class met certification requirements, given USCIS's refund program and the timing of her fee payment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether class certification is proper under Rule 23 | Proposed class meets numerosity, commonality, typicality, adequacy | Volkova can't represent those eligible for a refund under different circumstances | Class certified but with refined, narrower definition |
| Whether AUSAA requires USCIS to refund fees paid prior to its enactment | AUSAA should apply retroactively to fees paid by parolees | Parolees who paid before AUSAA's effective date not entitled to refund | Live issue suitable for classwide resolution |
| Adequacy of representative (class representative adequacy) | Volkova is representative of all relevant fee-payers | Volkova only represents those who paid before AUSAA, not others | Adequate as to pre-AUSAA payers, not for others |
| Definition of class (avoidance of "fail-safe" class) | Original class definition proper | Definition improperly hinges on merits of entitlement | Court revises class definition to avoid fail-safe problem |
Key Cases Cited
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (class representative must share same interest and injury as class members)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (commonality requires claims capable of classwide resolution)
- Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455 (courts cannot determine merits at class certification stage)