*****Final Draft of Our Reply to the Govt.*****

[Rajiv S. Khanna]

Please see attached. We are almost done with this.

[extra_dry_gin]

Wow. This is brilliant.

Rajiv, thanks for your extra-ordinatory effort in pursuing this fight.

extra_dry_gin

[rajum]

Rajiv,
The reply looks good...I am not a legal person and so unable to say anything better than this...

One point which attracted me most was: USCIS own admission that its procedures was inadequate before July 2002....your twist was quite good...

One more thing which may not be factually not correct, though not part of the case :
You mentioned that the March 30 th memo will be applicable for concurrent filers who are filing after April 30th. The memo is not clear on this aspect which we all agreed in the conference call.
However, this is more of a conjecture nature and so not critical.

I learnt one new word "inapposite" which means not pertinent nor appropriate...

-rajum

[dsatish]

Rajiv,
Looks good. I suggest one change /improvement. In page 9, paragraph 2, please add the following sentence after the first sentence.
"They only asked for timely adjudication of their cases and they did not challenge adjudication of other cases".

It is better to write the above sentence explicitly because CIS has again and again highlighted (in their reply) that the plaintiffs are asking for unreasonable adjudication, ahead of others in the queue. This will be one of the hot topics during the review by the judge.

[dsatish]

Rajiv,
I just saw you on the c-span program. It was good to see you finally.

[ag28]

I may have misunderstood but the last line on page 1
"Defendant's opposition poses five inapposite arguments that warrant reply"
should it not be either " plaintiff's opposition" or "just the defendants" as they are the ones who are making irrelevant arguments. Also, we are presenting these arguments from page 2 onwards and replying to them.
Is my thinking right?

[dsatish]

One more suggestion :
While countering objection 1 ,i think that you should mention the following (while explaining the commonality of class),in page 7 :
"All the members of the 5 sub classes that the defendants refer to, face the same laws regarding job portability and career opportunities after getting the green card. The laws and restrictions governing the employment based adjustment of status applicants , are same for all categories. The differences are only in the adjudication procedures"

I know that the above sentense needs some rework, but i mean to say that it might be better to explain the commonality of laws governing all the sub categories of EB I485 applicants. Every one goes throught the same career stagnation problems, same job portability restrictions etc. For example AC21 does not distinguish between different sub categories.

[dsatish]

I was looking into your reply to their objection #3 : typicality.
In page 11, i am not sure how strong is our argument that those whose I140 and I485 are both pending is in the same class as those whose I140 is approved and I485 is pending. Are they not different classes if you are talking about I485 delays ? If a person's I140 is not approved, how can we ask for his/her I485 adjudication in a timely manner ? Please try to give some more explanation to the commonality of these two groups . I would suggest that it is better to argue that "for those whose I140 is still pending, their I485 should be adjudicated within reasonable time after the I140 approval".
Breaking this deadlock might be important in the class action certification. All the recent Memos and pilot projects of CIS seem to be attempts to divide the class into concurrent filers and non concurrent filers.

[dsatish]

In page 12, second paragraph : I think that it may be better to explain some other serious issues while explaining the varieties of harm suffered. The delays in naturalization and the resultant issues are good but i think that you can put more touching issues mentioned by some people in the thread titled "Govt's response to our class action ". Due to the severe delays, the Companies are exploiting the applicants by not increasing the salaries during this period, people declining promotions due to fear of the new job descriptions not matching the one mentioned in LC, etc.

[dsatish]

Typo error in page 14, line 7 : "immigration.portal.com"
The "." should be deleted.

[dsatish]

Page 15, line 6. It may be better to rewrite the sentence "The common harm inflicted by unreasonable delay is self-evident".
How about saying "These plaintiffs face the same difficulties as the other plaintiffs and the class in general, due to the delays in the adjudication of their cases"

[hidden_dragon]

(Almost?) every one with 140 pending filed under concurrent filing, be definition, which requires adj of 485 at the same time of 140. So I think they are in the same class of 485 applicants.

Originally posted by dsatish
I was looking into your reply to their objection #3 : typicality.
In page 11, i am not sure how strong is our argument that those whose I140 and I485 are both pending is in the same class as those whose I140 is approved and I485 is pending. Are they not different classes if you are talking about I485 delays ? If a person's I140 is not approved, how can we ask for his/her I485 adjudication in a timely manner ? Please try to give some more explanation to the commonality of these two groups . I would suggest that it is better to argue that "for those whose I140 is still pending, their I485 should be adjudicated within reasonable time after the I140 approval".
Breaking this deadlock might be important in the class action certification. All the recent Memos and pilot projects of CIS seem to be attempts to divide the class into concurrent filers and non concurrent filers.

[Edison]

Rajiv and his team has just 5 days to reply. He also could spare time to get our comments with in this 5 days but CIS cannot submit their reply in 90 days for complaint and 30 days for class action. This explains all the delay at CIS.

[feb6361]

Once again, excellent effort of Mr. Rajiv!

Originally posted by operations
Please see attached. We are almost done with this.

[hidden_dragon]

So someone please explain what and when happens next? What else can USCIS do further delay the court decision? After the court decision, in case in favor of us, can CIS appeal?

[tmc]

we definitely need to address all the problems we face - citizenship is just one of them. keeping same job, whole career lost if job is lost due to situation beyond the applicant's control, education assistance problem, death of primary applicant, no loans or insurance till you are not a permanent resident, driver's license problem, etc. we can also get testimony if we need. thanks.

edit - we also need to point out that there is ABSOLUTELY no order in their processing.

Originally posted by dsatish
In page 12, second paragraph : I think that it may be better to explain some other serious issues while explaining the varieties of harm suffered. The delays in naturalization and the resultant issues are good but i think that you can put more touching issues mentioned by some people in the thread titled "Govt's response to our class action ". Due to the severe delays, the Companies are exploiting the applicants by not increasing the salaries during this period, people declining promotions due to fear of the new job descriptions not matching the one mentioned in LC, etc.

[jhonyrk]

In their reply they say the processing of application is done on or before the date published by the USCIS.But the reality is most of the cases before that date is processed.They don't process the cases in orderly manner,they do processing from 2001 to 2003 with out any regard for FIFO

[vi00]

I am a bit new here so please bear with me.

1) One of the reasons that deters most of the members joining the petition, is that fear of reprisal from BCIS. Can we ask the Court to grant some kind supervision/protection for members joining the case. BCIS,as we mentioned here, can delay , issue RFE's, and cause further delays with no recourse or intervention from anybody. There has to be some kind of protection here.
We should also raise the issue where the Attorney of BCIS wanted depositions in a threatening/insinuating way, instead of looking at the merits/demerits of the complaint.

2) The relief we are looking for petition members and class action members should be exactly 180 days. In other words, BCIS should adjudicate the case in 180 days. This was a number that was given by BCIS itself for the recent pilot project at TSC.

3) We should point out blatant false statements made by BCIS in its reply to class action suit. This should be factual. Please include EAC numbers of personnel who have been approved in October 2002, whereas EAC numbers of members of Jan 2002, who have not been approved, without any notice of cause whatsoever.
And therefore request the judge to throw out the defendents plea for refusal of class action suit for providing inaccurate/misleading statements/facts.
( I have my EAC number in July 2003, so I have nothing for or against anybody in Jan or Oct 2002).

4) We should challenge BCIS's assertion that it is the security check that is causing the delay. They should be asked to provide a factual number/statistics, as to how long it takes for them to obtain security clearance for an application. Is the delay happening because of lack of persons assigned to security, or security check itself. How are cases cleared in a month after RFE for 2nd FP. Again we can provide certain EAC's here.
BCIS, is using "NATIONAL SECURITY" to scare people and hide its inefficiency behind that.
BCIS should also indicate why is a security check a pre-requisite to GC. Why can't it be a parallel process. Is there a law which mandates it. They are free to do as many security checks as they wish. GC is revocable privilege, so why is it not made parallel to security checks.

5) If funds is the issue, then what is stopping BCIS to immediately start premimum processing of I-485's by asking for appropriate fees.

[tmc]

that they (is it Aguirre?) testified that they process 20000 gcs per day which doesn't reflect the fact - counting the no.of I-485 and I-90.

[cinta]

Good points by vi00. Let me add some more.

1: Processing. It is obvious that they process/adjudicate applications without second FP and with second, third FP, so the RD and/or ND is gone with the wind. Furthermore, the ASC as driven by USCIS fail to timely schedule second FPs.

2: Security. The country has a lot of SECURITY EXPERTS which could testify their opinions as to the so called "security checks" applied additionally after April 2002. One example could be the 9-11 commission declarations wrt Immigration policies.

[getit]

I think we need to point out CIS is operating a "black box". Many applicants don't know the exact status. When CIS was asked, they had unreasonable excuses on that.

For example, I saw a lot of people complained the on line status doesn't reflect the real status. It was not updated even if FP,name check were done. So when CIS was asked, the answer was like "name ckeck was not done...blah...". This gives CIS enough excuses to escape from the responsiblity.

[vi00]

We should aim to provide some hard facts to refute BCIS claims. A logical argument can always be counted by another argument.

But with facts, the side which has accurate facts, will win, as long as we are at the same level/close level in logical arguments.

In this case, facts are with us.

BCIS will make many logical arguments to cover their flaws, but they can ripped with facts.

For example BCIS says, that the delays are happening due to security checks. We can ask for facts, as to how long it takes for them to clear it, and then provide the judge with facts, that FBI, predominantly clears finger prints in 1 day. Most external agencies which do background checks, clear such checks in 5 working days, electronically. Second FP's are themselves cleared by BCIS in a month. So howcome First FP is not handled in 15 months.
An uncleard security check poses security threats to the nation, as a potential criminal/ terrorist is free to do whatever he/she desires. So what effort does BCIS do to make sure Security checks are cleared asap, and therefore make the country secure.

BCIS talks about conflict of interest on our side. We should claim that BCIS also has conflict of interest in arguing the case to be denied as if the court goes to case, their failure to provide efficient and genuine immigration benefits to America, will come out open so they are trying to hide their failures.

BCIS also inappropriately asks for many unnecessary RFE's, at AOS stage, even though Salary stubs, company letter are included with AOS petition. AOS is for future employment, so why should a company be burdened to prove it repetitively when BCIS itself is ineffective to do its task in more than 1 year just once. Proof of paying and intent is established at I-140 stage, so why is it asked in AOS stage again.
If Security clearance is a mandatory requirement, why do they ask for multiple FP's. It should be a phase and once passed, there should be no need to redo it. It is an internal flaw at BCIS.
Why hasn't the Attorney answered that. Why hasn't the BCIS Director rectified it till now. He is prima facie responsbile for this flaw.

I also noted from BCIS reply, that they are intentinally talking on/detailing what happens outside BCIS. Everybody knows that.
The issue here is what is happening inside BCIS, which they have smartly avoided. Our focus should be to inform the judge that BCIS attorney is intentionally talking about something that we are not complaining. He is lecturing on how a GC can be achieved by an applicant. That is not the issue here. The issue is what are the steps followed and how by BCIS in adjudicating an AOS petition once they receive an application.
For example, does BCIS have a daily report to indicate how may Security checks have not been cleared 2 weeks after FP is done. Then does some officer pursue such cases with relevant agencies so that national security is not compromised.

We should argue this on our grounds, and not theirs.

[Rajiv S. Khanna]

Originally posted by hrithikroshan11
This is excellent. The draft coming in just 2 days after Sunday meeting is amazing. Rajiv, you are not good, but too good.

How about including following points in the response:

1. Refute their claim of processing in the order of receipt of application. This is very important. They have no policy in processing applications. Some applications get processed in 2 months especially RFE applications while others keep pending for longer periods.

2. Ask them the legality of AC-21 when 140 and 485 are filed concurrently. How can a person apply AC-21 if they cannot adjudicate 140 applications within 6 months? If they are really serious, they should approve 140 applications within 6 months.

3. If all security checks are done at 485 stage, why is 140 processing taking so long?

I think we will take these issues up at the Summary Judgment stage. Thanks for your suggestions. keep them coming.

[Rajiv S. Khanna]

Originally posted by ag28
I may have misunderstood but the last line on page 1
"Defendant's opposition poses five inapposite arguments that warrant reply"
should it not be either " plaintiff's opposition" or "just the defendants" as they are the ones who are making irrelevant arguments. Also, we are presenting these arguments from page 2 onwards and replying to them.
Is my thinking right?

"Opposition" is the document they have filed. I think we are OK.

[Rajiv S. Khanna]

Originally posted by dsatish
One more suggestion :
While countering objection 1 ,i think that you should mention the following (while explaining the commonality of class),in page 7 :
"All the members of the 5 sub classes that the defendants refer to, face the same laws regarding job portability and career opportunities after getting the green card. The laws and restrictions governing the employment based adjustment of status applicants , are same for all categories. The differences are only in the adjudication procedures"

I know that the above sentense needs some rework, but i mean to say that it might be better to explain the commonality of laws governing all the sub categories of EB I485 applicants. Every one goes throught the same career stagnation problems, same job portability restrictions etc. For example AC21 does not distinguish between different sub categories.

:-) Not a good idea. I will explain offline if you remind me.

[Rajiv S. Khanna]

Originally posted by dsatish
Page 15, line 6. It may be better to rewrite the sentence "The common harm inflicted by unreasonable delay is self-evident".
How about saying "These plaintiffs face the same difficulties as the other plaintiffs and the class in general, due to the delays in the adjudication of their cases"

Like I said, there is a legal eason for every move. I will explain offline.

[Rajiv S. Khanna]

I will explain the posture of the case.

[dsatish]

Originally posted by operations
I will explain the posture of the case.

When(date and time) do you want it to be scheduled ? Let's go with your preference. Those who can make it will make it.

[Rajiv S. Khanna]

Keep ypour fingers crossed folks.

[Groan]

TSC is processing cases filed in Dec02/Jan 03 based on the expiry of FP, while Jan 02 to Nov 02 are not processed. When asked, CIS says cases are processed ONLY in the order they are received. This is very unfair. Applicants should not be penalized or benefit from a buggy fingerprint scheduling system and CIS own
mistakes.

This defense of the case pending longest being processed first is absolutely bogus and must be exposed. Today its based on FP expiry, tomorrow who knows what arbitrary criteria will be imposed ?