My conversation with USCIS Lawyer

[Rajiv S. Khanna]

Discussion with USCIS Counsel, Re: I-485 Delay Litigation (ImmigrationPortal.Com, et al. v. Tom Ridge, et al.)

2/5/2004
Yesterday, Attorney William Erb from the Office of Litigation, US department of Justice called me. He is authorized to speak for all the defendants in this matter. We discussed a number of issues.

He informed me that a summary of this lawsuit had been sent to several members of Congress. He mentioned that reduction of backlogs was a common sense prerequisite to immigration reform currently being considered by the White House and by Congress. We agreed that if Congress passes laws addressing the backlog issue, our lawsuit could become moot.

I suggested that we meet with USCIS to discuss immediate remedial measures that would help ameliorate problems without massive overhaul in the statutory or regulatory framework. I am not at all confident that we can work something out, but it is worth a try. Typical examples of problems that can be removed without much ado are:
Elimination of repeat EAD, Advance Parole and Fingerprinting; counting the I-485 portability from the I-485/I-140 filing rather than from the I-140 approval, etc.

So people, get together and draft a bunch of suggestions that I can present to the defendants. They might agree to meet with me after reviewing our proposal.

Regards to all. Rajiv.

PS Those who are not members of ImmigrationPortal.Com, can send me an email with their thoughts.

[dude2711725]

I would like to take this opportunity to put forward my suggestions but not before Thanking you for all your efforts in helping the immigrant community.

"THANK YOU Mr. RAJIV S. KHANNA"

- Potability factor

Suggest portability from the filing date of I/140-485 concurrently and 180 days have passed and if not heard anything on that front, employee is portable as against what we have in place as of date - Everyone in this forum is aware no dates are meet with.

- EAD

Receipt is enough to continue working till adjudicated - Again life at their hands, not acceptable.

- AP/EAD

- No time limit, till adjudicated.

These are my suggestions.

Thanks

[DaoMingTze2]

I think asking them to extend the validity of EAD, AP, FP's, etc is a good start. However, it does not really solve the real problem here, which is the delays in processing. Even, it might be used as an excuse by the USCIS to put I-485's in the backburner again, saying that we have privileges like AP and EAD.

Can we also ask for a "guaranteed" resource allocated for EB-I-485 processing, and backlog reduction. For example 50 officers/ Service centers dedicated solely on EB-I-485, or 1 officer/1000 pending cases that cannot be reallocated to other product as long as there is backlog in

EB-I485. I remmbered how they used prioritization of asylees/religious workers as an excuse to reallocate resources/officers and put EB-I485 cases in the backburner. I think we should try to get the USCIS to guarantee that this won't happen again.

Well, It's just my 2 cents. To professional project managers. Don't you always ask for a "dedicated resource" for your project when working with a (sub)contractor?

[feb6361]

My 2 cents:

I think, this is a good start and hope it should end also in our community's benifits/goals. I know, congress will take another year to pass all the laws to address backlog issues but at the same time what about the I-485 cases that are pending over 540 days. USCIS should first clear that with the immediate effect. I think, USCIS has created this mess in order to get more funding from the congress and they will use our lawsuite to their benifits.

Once again thank you so much Mr. Rajiv and whole team for every thing!

[hmd]

In order to for ppl to get benefit of I485 they have to first reduce the I140 backlog. If i remeber well I140 used to take less than 3 months couple of years ago at VSC.
I think what ever the procedures they are going to implement (if they agree to it) to reduce the back log on EB i485 should be applied to I140 as well.
As we all know I140 is just company ability to pay and i suppose there are no background checks involved when compared to I485.
So if they reduce I140 backlogs then atleast ppl will have ability use AC21.
if not they should agree to allow the use AC21 after 180 days of the date of filing of I140/I485 rather then waiting for approval of I140 and the should not allow employer to cancel the I140 if employee uses AC 21.
EAD,AP i agree with dude2711725 this should also include FP.
by taking the FP multiple times the whole purpose of FP is lost because FP won't change no matter what.

hmd

[masti25]

My biggest concern is the portability issue. One should be able to use AC21 after 180 days of filing 485/140 even without 140 approval (180 days rule doesn't make any sense if 140 is not approved within 180 days). This is a concern to all folks whose jobs are at stake (starting over the GC process is not an option as we are almost out of our H-1 time).

I also agree that indefinite wait on 485 is an issue. Hopefully, without renewal of EAD & AP and with more officers allocated to the case, the processing time might improve.

Thanks for supporting us Rajiv.

Cheers,
masti

[hmd]

I forgot to Thank Mr Khanna for everything he is doing in fighting for the just causes of the immigrants. Really appreciate it.

hmd

[askgc]

Originally posted by dude2711725
I would like to take this opportunity to put forward my suggestions but not before Thanking you for all your efforts in helping the immigrant community.

"THANK YOU Mr. RAJIV S. KHANNA"

- Potability factor

Suggest portability from the filing date of I/140-485 concurrently and 180 days have passed and if not heard anything on that front, employee is portable as against what we have in place as of date - Everyone in this forum is aware no dates are meet with.

- EAD

Receipt is enough to continue working till adjudicated - Again life at their hands, not acceptable.

- AP/EAD

- No time limit, till adjudicated.

These are my suggestions.

Thanks

Thanks a lot Rajeev Khanna.

Protability Factor & 485 delays.
---------------------------------------

Current rule of 140 approval and 6 months from 485 is making AC
21 useless as some of the centres are taking indefinite time
(though they claim an year for the I140 as of now in CSC).
In addition to that in CSC from last 9 months the dates of 140 has not moved a single day. There are applications pending as early as dec 2002 in the tracker thread of CSC.
We are not seeing any light at the end of the tunnel. We do
not know by any means when can we be safe and not being harrassed by an employer. BTW my case it took close to 3 years to clear the labor certification. Receiving 1st EAD is also useless but one has to apply hoping for the future.

I have scanned a days applications (Thanks a lot kashmir) to see
why the dates are not moving at all even for a day and found
the below. Same case with I485 in CSC.

53% - 90
10% - 765
10% - 130
12% - h1
7% - h4

4% - 485
2% - 140

After going through the above percentages it does imply to me that may be USCIS is playing wait and delay politics (or) atleast not processing these types of cases at all (I may be wrong).

Hope something changes.

Thanks a lot khanna saab.

[sgi]

can it be known to them, that there are huge backlogs at local offices such as Philly, Atlanta and Arlington where applicants have been waiting from more than an year, after transfer, and still no news about interviews.

Could something be done about this? Such as the actual RD be considered and not the TD for scheduling interviews.


Thanks Mr. Khanna and the core team for making someone hear about our problems.


sgi

[tmc]

i assume when we discuss with USCIS we cannot ask for things like AC21 with no restrictions, count 5 year eligibility for citizenship from the 485 filing, etc, as my impression is that these are in the hands of the lawmakers and not with uscis. with this in mind these are my thoughts:

-issue EAD, AP for 4 years (or more???). this will eleiminate a lot of applications and will aid them to spend more time with other applications.
-improve customer support. eliminate this useless 800 number and provide direct case status, or very good detailed status on the website.
-show some regularity in the approvals (i.e., approvals should be in chronological order, no random approvals). say, approvals should not overlap by more than 3 months, i.e., no more things like when people from 2001 (btw, i am not a 2001 filer) are waiting people from 2002 getting approved. i am sure people will disagree with me on this, but there should be some sort of first in first out system. i understand there cannot be strict chronological order, thats why i am saying 3 months window.
-issue FP in order. same issue as the approval of 485. only one FP and it should remain valid through the pendency of the 485.
-the transfers to local center should be processed with at the local center fast. it doesn't take more than 30 mins for an interview.

i hope the above are within the power of uscis. if i think of anything else i'll post. i hope these are reasonable too.

ofcourse the best thing if they approve the gc, we don't need any of these. so if they say - all 485 will be approved by default after 1 year of filing it would be great :-).

[ficapls]

Extending the validity of AP/FP, portability, etc will not solve problems like in-state tuition, FAFSA.

I think something like requiring automatic approval after the I-140/485 application has been pending for some time (2 years maybe) or even less, will guarantee that proper resources are allocated by the USCIS.

[goodsaint]

I would ask for not so strict interpretation/application of "same or similar occupation". If the petitioner is able to find a better/worse job or gets a promotion (a natural progression), his 485 should still be approval.

If the applicant is without the job at the time of RFE, it should not be a ground for denial if the applicant can show that he/she is actively looking for job and possess current skills.

5 year clock (to citizenship) should start 6 months after filing an approval 485.


Or, what they should do is to give temporary green card after reviewing 485 (if 485 is prima facie approval). No need for EAD, AP etc. They can then take whatever time to process the application.

[functionalalert]

I have made a list of suggestions that could immiadetely solve most issues.

1. EAD and AP issued indefinitely till revoked

2. after i-140 is 180 days old employee free to go anyhwere to do anything


3.permanent resident for all practical purposes: i propose that if the I-485 has been pending for 180 days,the person should be considered a permanent resident for all practical purposes including but not limited to access to federal aid in state tuition unemployment beneifts,right to join defense services,purhcase home,run small business etc
this can be suject to applicant passing security and medical checks and there are no exisitng grounds for inadmissibility

what i am saying is after 180 days of i-485 days if there is no rfe,then the applicant is free to do whatever he wants and the only grounds for denial of permanent residence whenver it is approved should be security or health or serious crimes etc.

what i am saying is that most applicants are aggravated due to the fact that they are constantly dependant on somehting. the dependance factor should be erased after 180 days. so what i am saying is that when 180 days of i-140 pending have passed employer cannot cancel anything and employee is a demeed permanent resident (assuming i-485 is pending 180 days) and can get acess to all benefits that a permanent resident would get. this would solve everyone's problem since the only thing pending iis a formal approval or denial but the dependence on employer same or similar job etc are what causes the frustration.

also another question: if some members of this group feel that the government action is unfair can they file seperate lawsuits challenging the action or what. I mean since we have gone so far,let us go all the way to get full justice which cannot be achieved without freedom from dependance.

to draw a simialrity which most class members may be familair is to compare us to a girl in afghanistan who was first dependant on father and brother then husband and son to do anyhting.

how long will they abuse us,they cannot bring back the time we have lost and they appear to show no remorse and there does not appear to be immediate relief. seems like this is a time delaying tactic.but since this is an election year,hopefully they may consider some immiadete relief

[kadamtal]

First, thanks to Mr. Rajiv Khanna for being the pioneer in trying to bring change in this messed up immigration system. And also thanks to all the key members of each service center thread. All your contributions are applaudable.

Like everybody i too want to get an EAD and AP that is valid till my 485 gets adjudicated.

But the point is without my 485 approved, i still have to maintain my job title and stick with the same employer however bad they might be. ( No i don't want to get lectures on AC21 rule and stuff like that...no please).

I want to be able to buy a house. I don't want to educate real estate guys and unnecessary folks on the new law changes (if they ever approve for NEVER EXPIRING EAD and AP) to get better deals.

I want to be able to get federal loans to my kids when they enter colleges and not be thrown off saying you pay the international students fees or as a favor "in-state" fees. I want a permanent resident status.

I want to roam in and out of US without having to tell the immigration officer at the airport that i am valid to fly as a new law is put in place which he/she will not have a clue about and end in a harrassment cell.

The list can go on....You can see all these on this very forum and doesn't surprise me if i could be the next guy victim of their attrocities...

I WANT MY GREEN CARD AND THAT IS IT....PERIOD.

[Satvika]

I think the main consurn is porability using ac21.if we can able to change jobs using ac21 180 days after filing 140/485 that would be very nice.

And why don't they increase charges for 140/485 and use the money to employ more peolpe and resolve backlog issues.I think every one will be happy to pay more if they know that the uncertinity situation will be resolved in less time.How simple solution is that.Why they are not doing that.Don't they know how many people are stuck in their jobs with out any progress because of this delays.

I filled my labour in may2002 and i am still 1 month away from satrting my labour process(from verginia).I got very good offer from the client to join their company but I can not able to take the offer because they will file GC from NJ and it is in 2002.

[Rohani]

Rajiv Khanna Saheb,

We all members of this immigration portal would like to appreciate your efforts in this matter. However here is
my chawanni on this:

1) Once FP, EAD, AP has been issued, it should be valid for
few years before the final adjudication. Their manpower can be utilized to reduce other backlogs rather than issuing renewal notices for all above.

2) Clear guidelines should be published by USCIS on AC-21 portability considering all denying factors. This would help an individual to draw some conclusion from all AC-21 related Laws other than posting articles on newsgroup.

Once again Thanks to you.

Cheers

[dmun]

My 2 cents:

AC21 portability : 180 days after filing 485 and not 140 approval.
EAD : until the case has been adjudicated
AP : same as above

Tx

[duremar]

I think somebody mentioned it before, but what if USCIS will be able to cash the check only when a decision is made on an application?

However I doubt that they willfully agree to it without something like an act of Congress...

[PhillyJulyLC]

I think it might be the best option to meet with USCIS and try to at least partially solve some of the problems. Lawsuit may get better outcome, but it takes time and no one can garantee it'll end up as we are expecting... On the other hand, you can always get off the negotiation table and continue the lawsuit if not satisfied with the outcome of the meeting...

As to the issues to be discussed in the meeting, I think Mr. Khanna has covered all the major ones - Portability before I-140 approval is critical, given the current highly unstable job market and longer and longer processing time of I-140. One time EAD, AP and FP would not only provide great convinience for us but also relieve CIS from having to deal with millions of such cases - as a result the speedy processing of I-140 and I-485 would be more realistic. Just my 2c. Thank you very much, Mr. Khanna!

[jose loaiza]

Thank you Dr. Rajiv for your determination to help immigrants!!
my 2 cents:

1) After 180 days of I485 filing, the applicant can go anywhere and work with no restrictions.
2) No need to renew AP, EAD or "temporary residence"
3) If they are willing to "premium process" I-485, I would be willing to consider that option for a reasonably fee.

Thanks!!!
Jose Loaiza

[masti25]

As 140 is primarily dependent on empoyers financial information, USCIS should be able to make a quick decision on these cases.

If resources are not available to to handles these cases, they should have the provision for priority 140 with more fees (say $1000 more) - hire more resources with this money. Also, this priority 140 option should be extended to both new and EXISTING applications.

Thanks,
masti

[feb6361]

Dear Mr. Rajiv,

I think, you have better idea then all of us..so I request you to post list of items priority wise that you would like to see settled by UCIS. After that each member can add some missing item.

I think, it would be better than everyone writes comman items again and again in detail.

[Rajiv S. Khanna]

Originally posted by functionalalert
I have made a list of suggestions that could immiadetely solve most issues.

1. EAD and AP issued indefinitely till revoked

2. after i-140 is 180 days old employee free to go anyhwere to do anything


3.permanent resident for all practical purposes: i propose that if the I-485 has been pending for 180 days,the person should be considered a permanent resident for all practical purposes including but not limited to access to federal aid in state tuition unemployment beneifts,right to join defense services,purhcase home,run small business etc
this can be suject to applicant passing security and medical checks and there are no exisitng grounds for inadmissibility

what i am saying is after 180 days of i-485 days if there is no rfe,then the applicant is free to do whatever he wants and the only grounds for denial of permanent residence whenver it is approved should be security or health or serious crimes etc.

what i am saying is that most applicants are aggravated due to the fact that they are constantly dependant on somehting. the dependance factor should be erased after 180 days. so what i am saying is that when 180 days of i-140 pending have passed employer cannot cancel anything and employee is a demeed permanent resident (assuming i-485 is pending 180 days) and can get acess to all benefits that a permanent resident would get. this would solve everyone's problem since the only thing pending iis a formal approval or denial but the dependence on employer same or similar job etc are what causes the frustration.

also another question: if some members of this group feel that the government action is unfair can they file seperate lawsuits challenging the action or what. I mean since we have gone so far,let us go all the way to get full justice which cannot be achieved without freedom from dependance.

to draw a simialrity which most class members may be familair is to compare us to a girl in afghanistan who was first dependant on father and brother then husband and son to do anyhting.

how long will they abuse us,they cannot bring back the time we have lost and they appear to show no remorse and there does not appear to be immediate relief. seems like this is a time delaying tactic.but since this is an election year,hopefully they may consider some immiadete relief

Bear in mind, we can lose in court. This lawsuit raises some serious issues about what the courts can and cannot do. The theory of "separation of powers" says, the three branches: legislature, judiciary and executive cannot normally intervene in each other's busness. I do not want to say too much, but if they make me an offer that takes care of most of our problems (I am making a list from your suggestions and my own), we should consider accepting. But I am not stopping the fight until we have agreed. The fight goes on.

[oedsted]

First of all I would like to thank you Mr. Khanna for you relentless effort to preserve our rights as immigrants. Your dedication to the immigration community is highly appreciated.

Here is my two cents.


1. AP & EAD valid until case has been adjusted.
2.Portability – 180 days after approval of I140 there should be no restriction on job duties nor salaries of the applicant. We should be allowed to get promotions, change employer & careers and have the right to be self-employed, start a company etc.

[vcb]

Thanks Rajiv for your generous efforts to help immigration community

*After 180 days of I485 and I140 application, applicant can switch to different employer.

* EAD and AP need to valid till they(BCIS) approve or deny the pending applications.

*recently BCIS announced that their premium process for H1's are criticized by several people,
so they are hesitant to implement premium process to I140 applications. but based on today's
backlogs people will be glad to see premium process on I140 and i485 applications.


Regards,
VCB

[myopinion]

function alert has given good suggestions; Summary;

1. Treat green card granted after 180 days of pending 485, till case is decided.

2. Family also gets green card benefits after 180 days of filing 485, till case is decided.

3. No job change limitations of any kind after 180 days pending.

4. Citizenship counter starts 180 days after filing 485.

5. With above, of course, we should not be asked for EAD, AP, FP, Medical etc renewal.

[timesa]

Hi Rajiv,
Thanks for the great service for immigration community. Apart from elimination of repeat EAD, Advance Parole and Fingerprinting it is required to get some relief on AC21 portability. What if person holding the same job for more than 2 years after filing I -485 and loose a job and not be able to respond to RFE in case he/she is not able to find similar Job (same or above salary and same job description). According to recent study average time to get another job is 5 months if the job is lost in this economy and getting the same salary with same job description is even difficult in this economy. It is purely due to ineffeciency of USCIS why should that person be denied GC or he/she should have gotten in 180 days. Elimination of AP, EAD and FP shouldn't be an excuse again to prolong I -485 cases for many years.

Regards,
timesa

[smita_goyle]

1) Adjudicate the I-485 cases for 2001 files within one month.

2) Adjudicate I-485 withing the stipulated time period 365-450 days (this is a minimum).

3) From our side we volunteer for security checks (if they agree) and if the security checks are bottlenecs in the processing.

4) Also we volunteer for 2nd finger printing if they want, rather then waiting for thier notices.


Extending EAD/AP validity is secondary....

So the basic is immediately adjudicate the pending I-485 files without any delay...We volunteer for fund if they need.

thanks
Sg

[mballav]

Hello Mr. Khanna:

Thanks Alot for your efforts.

Here are my 2 cents on the topic:

I think that the first priority should be to eliminate the I-140 and I-485 backlogs. The priority dates at CSC have not moved by a day in last six months, which to me appears to be more of a political or management decision rather than excessive workload on their employees.

Next comes the longevity of EAD and Advance Parole documents. If they ask everyone to renew them, they are increasing the workload by having to process the renewals. Otherwise, they can focus on the backlogs.

Regards,
Manish

[timaeuti]

Rajiv,

Sounds like they are taking you seriously. That is already a victory. You are doing a terrific job for a great cause.