EAJA fee recovery for corporate plaintiffs: the net-worth and headcount caps

Many business cases for a delay suit include a line that says fees may be recoverable. For most companies large enough to sponsor regularly, the Equal Access to Justice Act says otherwise. The eligibility test is short and unforgiving.

Who counts as a party

Under 28 U.S.C. § 2412(d)(2)(B), an individual qualifies if their net worth did not exceed $2,000,000 when the action was filed. A business, partnership, corporation, association or organisation qualifies only if its net worth did not exceed $7,000,000 and it had no more than 500 employees at that time, with limited exceptions such as certain tax-exempt organisations. Both thresholds are measured on the filing date.

The statute caps attorney fees at $125 an hour unless the court finds that an increase in the cost of living or a special factor justifies more. Fees are also unavailable where the government's position was substantially justified or special circumstances make an award unjust.

The mootness problem

Most employment-based delay suits end when the agency decides the case, as the I-140 timeline describes. A voluntary decision that moots the case is generally not a court-ordered change in the parties' relationship, and fee claims often fail on that ground. A court-ordered deadline or a stipulated order entered by the court is a different footing. In a June 2026 EB-5 dismissal, the court noted that a plaintiff who fails to state a delay claim also fails to establish an entitlement to EAJA fees, as discussed in the 120-day goal in court.

What this means for the business case

• A company above either threshold should budget the suit at its full cost, with no recovery line. The crossover in the business case for filing has to work without it.
• The employee, as an individual co-plaintiff, may meet the $2,000,000 net-worth test where the company does not. Whether a fee application is pursued on the employee's behalf, and who controls it, should be settled in the engagement terms; see separate counsel for the employee.
• Ask counsel whether a fixed fee assumes any recovery. It should not.

The underlying claim structure, mandamus under 28 U.S.C. § 1361 and the APA, is set out in the writ of mandamus explained for employers. Mandamus.com's EAJA page covers the fee application process in delay litigation.

How a fee claim is made

Where a party is eligible, the statute requires a fee application to be filed within thirty days of final judgment. It must show that the applicant is a prevailing party and eligible to receive an award, state the amount sought, and include an itemised statement of the time spent and the rates charged. The net-worth and headcount tests are therefore not a formality: the applicant has to prove them. A company that expects to rely on the employee's eligibility should make sure the employee is a named plaintiff from the start and that the time records distinguish work done for each client.

Questions

Can a large employer recover fees under EAJA?

Not if its net worth exceeded $7,000,000 or it had more than 500 employees when the action was filed.

Can the employee recover instead?

An individual plaintiff may qualify if their net worth did not exceed $2,000,000 at filing, subject to the other requirements of the statute.

Does a settlement count as winning?

It depends on its form. A voluntary decision that moots the case is generally treated differently from a court-ordered deadline. Take advice on the specific outcome.

General information, not legal advice. Rules and processing practice change; verify against the agency's own published figures and take advice on your own facts.