Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)

[paz1960]

I could not sleep this night so I came up with some crazy ideas about how to show that FBI & USCIS dropped the ball on name checks.

I believe FBI does the same exact checks for other state agencies. Department of state comes to mind, when somebody applies for a student/professor visa or immigrant visa abroad. I doubt that any student or professor is waiting for a few years to get a visa so that he/she can start a new semester. For that very reason (professors could not back in time to teach students, etc.) Mr. Garrity was called to testify before the Congress.

So if we can get statistics from FBI showing that requests from Dep. of State are not pending for years, we will be able to dispute all that BS about "lack of resources", "processing requests in the order they've been received", "it can take years to resolve a name check".
I also believe Dep of State has much better computer system than USCIS (consulate cannot rely on shipping magnetic tapes to FBI from (no offence) the middle of nowhere).

I also know for sure the same check is run when somebody applies for a sensitive government position. There is a form called "FBI Name Check Waiwer" which has to be signed by somebody who is applying fo such a position. Do you think any of those applicants are waiting more than a month?

I'm back from vacation, so I'll try to catch up with the events here on the forum, too.

I personally don't know if FBI does the exact same type of name check for the foreign visa applicants. Remember, before Nov. 2002 FBI was already conducting a much simpler name check process, which included only the "main" file system search, similarly with the today's FOIPA requests. They added the "reference" file search only after Nov. 2002. Is it possible that for the visa applications they still do only the "main" file search? I don't think that you can find this out reliabily. This probably enters in the sensitive information category (with good reasons) and they will not let you know.

If you apply for a Department of Energy position which requires "Q" type security clearence, this may take more than a year till is done, so your second argument is also not necessary valid. But I don't know how that security clearence is compared to the immigration benefit related background checks.

My point is that there is no solid evidence to assume that "one size fits all" applies to all types of the background checks.

 

[lazycis]

I'm back from vacation, so I'll try to catch up with the events here on the forum, too.

I personally don't know if FBI does the exact same type of name check for the foreign visa applicants. Remember, before Nov. 2002 FBI was already conducting a much simpler name check process, which included only the "main" file system search, similarly with the today's FOIPA requests. They added the "reference" file search only after Nov. 2002. Is it possible that for the visa applications they still do only the "main" file search? I don't think that you can find this out reliabily. This probably enters in the sensitive information category (with good reasons) and they will not let you know.

If you apply for a Department of Energy position which requires "Q" type security clearence, this may take more than a year till is done, so your second argument is also not necessary valid. But I don't know how that security clearence is compared to the immigration benefit related background checks.

My point is that there is no solid evidence to assume that "one size fits all" applies to all types of the background checks.

Does it make sense that those who apply for immigration benefits abroad do not have to go thru the same checks as those who are already in the US? I believe those are exactly the same checks.

 

[paz1960]

Does it make sense that those who apply for immigration benefits abroad do not have to go thru the same checks as those who are already in the US? I believe those are exactly the same checks.

I think that you are mixing here the non-immigrant visa applications with the immigrant (permanent resident) visa applications. The students and professors when they apply abroad for a visa to re-enter the USA are applying typically for F-1, J-1 or H1-B type visa, not for an immigrant visa (so presumably they are not going through the same background check process as the AOS cases). Do you have any reliable info how many actually applying for immigrant visas abroad, compared to the Adjustment of Status already here in the USA on a non-immigrant visa? If you have hard numbers and evidence that applying for immigrant visa abroad takes much shorter (statistically speaking) than applying for AOS, you have a point. Otherways it is just an assumption, with little or no legal value in a lawsuit.

 

[lazycis]

I think that you are mixing here the non-immigrant visa applications with the immigrant (permanent resident) visa applications. The students and professors when they apply abroad for a visa to re-enter the USA are applying typically for F-1, J-1 or H1-B type visa, not for an immigrant visa (so presumably they are not going through the same background check process as the AOS cases). Do you have any reliable info how many actually applying for immigrant visas abroad, compared to the Adjustment of Status already here in the USA on a non-immigrant visa? If you have hard numbers and evidence that applying for immigrant visa abroad takes much shorter (statistically speaking) than applying for AOS, you have a point. Otherways it is just an assumption, with little or no legal value in a lawsuit.

We missed you, Paz! You get right to the point.
FBI says name checks are fee for service. We need to get these answers from FBI (i.e., evidence):

1. Do they perform the same service for other agencys?
2. If they do, we need to get statistics for turnaround time.

I am not sure they run the same checks for all non-imigrant visas, but for some types they sure do (Visas Mantis comes to mind).
But even if they do not, we should be able to compare name check processing time for immigrant visas. How about DV visas? They have to be issued within a fiscal year, right?

We should be able to request that evidence from FBI and it is not classified info.

 

[motown]

I think that you are mixing here the non-immigrant visa applications with the immigrant (permanent resident) visa applications. The students and professors when they apply abroad for a visa to re-enter the USA are applying typically for F-1, J-1 or H1-B type visa, not for an immigrant visa (so presumably they are not going through the same background check process as the AOS cases). Do you have any reliable info how many actually applying for immigrant visas abroad, compared to the Adjustment of Status already here in the USA on a non-immigrant visa? If you have hard numbers and evidence that applying for immigrant visa abroad takes much shorter (statistically speaking) than applying for AOS, you have a point. Otherways it is just an assumption, with little or no legal value in a lawsuit.

Consular process (CP, the other way to get greencard instead of I-485) is using the same FBI name check (if you live in US and file through NVC - National Visa Center), but it is a little bit faster in CP than in I-485 according to my personal experience.

I went through the FBI name check process in Consular Process, the FBI name check took me about 7 months (8/2004 to 3/2005), and the FBI name check result was sent to DOS (DOS - Department of State, I had a email from FBI to prove that).

Right now, I am stuck with FBI name check again since 3/2005 when I filed I-485 (I filed I-485 since I need the EAD, Consular process can not get EAD, and I was not sure how long FBI name check will took at that time. Consular process get canceled automatically in about 3 months once I-485 get filed - I am so frustrated that NVC and USCIS are so efficient at this time ). NVC claimed that they forward my case to USCIS NSC, but apparently either NVC did not forward my FBI name check, or USCIS NSC lost my FBI Name check during the paper travel.

In the MTD, AUSA argued that I-485 FBI name check is different from Consular Process FBI name check . I know that the FBI name check are SAME in both processes, but just can not find legal document to prove that except the email from FBI ---- "A review of the FBI's Name Check Program database concerning XXX XXX revealed a request was received from the Department of State (DOS) on August 25, 2004 and it was completed on March 18, 2005. The results were forwarded to the DOS Headquarters in Washington DC. You can reach DOS at (202) 663-1225 for further information"

---- comments added. CP Name check and I-485 name check are same. Thanks to lazycis''s post below: http://www.fbi.gov/hq/nationalnamecheck.htm (this one mentions that name check does include reference files search)​

Major Contributing Agencies: The FBI’s NNCP Section provides services to more than 70 federal, state, and local governments and entities. Although most name checks are conducted for each agency on a first-in, first-out basis, the contributing agency determines the order of resolution for priority, project, or expedite cases. The following are the major contributing agencies to the NNCP:

* U.S. Citizenship and Immigration Services – Submits name check requests on individuals applying for the following benefits: asylum, adjustment of status to legal permanent resident, naturalization, and waivers.
* Office of Personnel Management – Submits name checks requests in order to determine an individual’s suitability and eligibility in seeking employment with the federal government.
* Department of State – Submits FBI name check requests on individuals applying for visas. Not all visa matters require FBI name checks.​

Any body have ideas that the following document works as the counter MTD that I am drafting? "All applicants for a U.S. immigration benefit are subject to criminal and national security background checks to ensure they are eligible for that benefit." Since DOS refer to USCIS FBI name check in their website: http://usinfo.state.gov/gi/Archive/2006/May/04-878088.html? --- I assume that CP and I-485 are two idendital process to the perminent resident.

Or can I use DOS NVC letter that my Congressman forwarded me on 5/2005 as the legal evidence? In the letter NVC stated that my document are all ready, and I am ready for the Consular interview once it is scheduled (interview never happened since CP get canceled, althrough the interview is the final step for greencard, like I-485 interview. Again no legal document found shows that this is the formal procedure).

Any input or comments would be highly appreciated!

Motown

 

[Mingjing]

I was once stuck on Visa Mantis background check. I had lived and worked in US since 1998. In Oct. 2002, I travelled outside US to China for my employer's business (large Fortune 500 tech company). I was under H1b and had to apply an H1b visa at US Consulate in Shanghai to come back into US.

I was told some "administrative" check needed to be done on Oct. 13th 2002 when I was interviewed. The visa section personnel made it sounded like it will take just a few days. I did not get the visa mantis check complete until Dec. 23rd 2002 - a while 70 days later. IN ADDITION, my wife was expecting our first child for Nov. 27, 2002. I told the visa personnel this, and she did not care. My daughter was born Nov. 2, 2002, 3 weeks early. I still want to cry and have nightmares about those days I had to call my wife in her hopsital bed to encourage her and calm her down to the extend I could, and ask her how our baby looks like, how loud she cries... I did not meet my first child until she was 42 days old. During the entire 70 days ordeal, I literarilly developed withdraw symptoms and physical headache almost daily.

And I knew a guy personally, and he had his house/wife etc. at US and traveled to China, and he was stuck before me, and did not come back until early summer of 2003!

LOOK AT HOW THESE GOVERNMETN CHECKS ARE TEARING APART THE HEARTS AND SOULS OF HONEST GOOD PEOPLE AND DESTROYING THEIR SENSE OF INNOCENSE!

Now, back to the subject, from my own experience, the few visa mantis check I heard about took less than a year. But there maybe people who never got their check result back (e.g. those who resided outside US).

Question: I am not sure " they run the same checks for all non-imigrant visas, but for some types they sure do (Visas Mantis comes to mind)" is correct. What is the evidence that Visa Mantis runs same check? Mine Visa Mantis check was run from Oct. to Dec. 02, right around the introdcuction of FBI new check process.

Thanks.

We missed you, Paz! You get right to the point.
FBI says name checks are fee for service. We need to get these answers from FBI (i.e., evidence):

1. Do they perform the same service for other agencys?
2. If they do, we need to get statistics for turnaround time.

I am not sure they run the same checks for all non-imigrant visas, but for some types they sure do (Visas Mantis comes to mind).
But even if they do not, we should be able to compare name check processing time for immigrant visas. How about DV visas? They have to be issued within a fiscal year, right?

We should be able to request that evidence from FBI and it is not classified info.

 

[lazycis]

Mingjing, sorry to hear you story. I am sure all this ordeal with name check creates a lot of bad feelings in a lot of good people. Let's not lose hope!

Here you go, it's the same check:


http://www.fbi.gov/hq/nationalnamecheck.htm (this one mentions that name check does include reference files search)

http://www.fbi.gov/congress/congress03/garrity071003.htm (As Mr. Garrity also mentions "As in the name checks processes for 70 other agencies...")

http://www.fbi.gov/congress/congress04/garrity022504.htm (visas Mantis)

 

[shvili]

Mingjing, sorry to hear you story. I am sure all this ordeal with name check creates a lot of bad feelings in a lot of good people. Let's not lose hope!

Here you go, it's the same check:


http://www.fbi.gov/hq/nationalnamecheck.htm (this one mentions that name check does include reference files search)

http://www.fbi.gov/congress/congress03/garrity071003.htm (As Mr. Garrity also mentions "As in the name checks processes for 70 other agencies...")

http://www.fbi.gov/congress/congress04/garrity022504.htm (visas Mantis)

lazycis,

Since they show it is the same name check (and I agree with Paz, you should have statements to prove it), I think you should use it. Did you say you're writing the opposition to MTD? I understand you have already filed your complaint (it's premature to use it in the original complaint, I think).

 

[shvili]

I'm back from vacation, so I'll try to catch up with the events here on the forum, too.

I personally don't know if FBI does the exact same type of name check for the foreign visa applicants. Remember, before Nov. 2002 FBI was already conducting a much simpler name check process, which included only the "main" file system search, similarly with the today's FOIPA requests. They added the "reference" file search only after Nov. 2002. Is it possible that for the visa applications they still do only the "main" file search? I don't think that you can find this out reliabily. This probably enters in the sensitive information category (with good reasons) and they will not let you know.

If you apply for a Department of Energy position which requires "Q" type security clearence, this may take more than a year till is done, so your second argument is also not necessary valid. But I don't know how that security clearence is compared to the immigration benefit related background checks.

My point is that there is no solid evidence to assume that "one size fits all" applies to all types of the background checks.

Paz,

it's so good to have you back on the forum, your participation is immediately felt!

 

[lazycis]

lazycis,

Since they show it is the same name check (and I agree with Paz, you should have statements to prove it), I think you should use it. Did you say you're writing the opposition to MTD? I understand you have already filed your complaint (it's premature to use it in the original complaint, I think).

I've already filed the opposition this week. Just trying to be one step ahead.
I do not think I can get those stats without RFE.

 

[swimfitness]

Case Management Conference: Help!

Folks:

The AUSA and I filed this week a Case Managment Statement. The AUSA indicated the defendent's intention to file MTD on April 25th in the statement. I agreed to Summative Judgment and to no Discovery and Trial, as AUSA said to me that FBI and USCIS will issue a decision to my I-485 petition shortly.

* Did I do the right thing?

We have a Case Managment Conference this April 11th with the judge.

* What shall I expect?
* what sort of preparation shall I do before hand?

I informed AUSA that I intend to hire a lawyer to take it from here in the event that my case is not resolved prior to April 25; the date AUSA will file MTD.

* Any thoughts?

Much appreciation.

 

[lazycis]

Folks:

The AUSA and I filed this week a Case Managment Statement. The AUSA indicated the defendent's intention to file MTD on April 25th in the statement. I agreed to Summative Judgment and to no Discovery and Trial, as AUSA said to me that FBI and USCIS will issue a decision to my I-485 petition shortly.

* Did I do the right thing?

We have a Case Managment Conference this April 11th with the judge.

* What shall I expect?
* what sort of preparation shall I do before hand?

I informed AUSA that I intend to hire a lawyer to take it from here in the event that my case is not resolved prior to April 25; the date AUSA will file MTD.

* Any thoughts?

Much appreciation.

You did the right thing. AUSA usually keeps his/her word. They will file MTD to dismiss your case as moot, I hope.
In the meantime, you can prepare a banquet and invite all of us to celebrate with you

 

[bsus]

Most recent successful WOM (AOS)

Just got message about this latest successful WOM (AOS) case.

Case No. 5:06-cv-07636-JF (N.D. Cal)

On April 3, 2007, "Stipulation to Dismiss" filed. - Relief is granted to Plaintiff.

I-485 filed in April 2003, and WOM filed in on Dec 13, 2007.

In this case, Judge issued "Order to show cause", AUSA filed an "Answer", and then Plaintiff's filed a "Reply".

 

[Hiram]

update on infopass apt.

I had an infopass apt. today. The officer said that the only thing pending in my case is the name check with the FBI, and that it has been pending since Nov 2005.

I tried to ask her about how to expedite my name check but in vein, until i mentioned that I am thinking about filing a WOM... she then made me fill a form G-14 and she hand wrote on it that my name check is pending with the FBI since November 2005. She explained to me that she will forward the form to another immigration officer on a different floor, who will follow up with the FBI on the status of the name check....

 

[Mingjing]

bsus,

1. Do you have court order and/or the complaint downloaded from Pacer that you can post here?

2. I remember you are in Northern District of California. If so, like to know if you have a motion to dismiss hearing date finalized yet. My motion to dimiss hearing is propsed by AUSA in MTD paper and it is 12 weeks after MTD was submitted. Want to see how much time between your recipet of MTD and the motion hearing date in your case.

3. Can you also confirm deadline to file opposition to MTD is no later than 3 weeks prior to the MTD hearing date? I am paranoid of misunderstanding the timeline.

Thanks.

Just got message about this latest successful WOM (AOS) case.

Case No. 5:06-cv-07636-JF (N.D. Cal)

On April 3, 2007, "Stipulation to Dismiss" filed. - Relief is granted to Plaintiff.

I-485 filed in April 2003, and WOM filed in on Dec 13, 2007.

In this case, Judge issued "Order to show cause", AUSA filed an "Answer", and then Plaintiff's filed a "Reply".

 

[bsus]

bsus,

1. Do you have court order and/or the complaint downloaded from Pacer that you can post here?

2. I remember you are in Northern District of California. If so, like to know if you have a motion to dismiss hearing date finalized yet. My motion to dimiss hearing is propsed by AUSA in MTD paper and it is 12 weeks after MTD was submitted. Want to see how much time between your recipet of MTD and the motion hearing date in your case.

3. Can you also confirm deadline to file opposition to MTD is no later than 3 weeks prior to the MTD hearing date? I am paranoid of misunderstanding the timeline.

Thanks.

MinJing

1. It's a Stipulation, not a court order yet. But Plaintiff has won the case.
2. I don't have hearing date my case, as my CMS, CMC, ADR are vacated. I didn't get a MTD, I got an "Answer" (but with essentially same content as MTD). My case considered fully submitted once I file my "Reply", there is no need for hearing.
3. In "Order to Show Cause", Judge requires Plaintiff file response within 20 days after an "Answer" is filed by Defendants, so I didn't look elsewhere for any other information about deadlines.

Hope this helps.

Regards

 

[lazycis]

bsus,

3. Can you also confirm deadline to file opposition to MTD is no later than 3 weeks prior to the MTD hearing date? I am paranoid of misunderstanding the timeline.

Thanks.

Mingjing,

If you are worried about deadlines, you should consider registering for PACER where you can check all deadlines for your case for a few pennies.

 

[snorlax]

I had an infopass apt. today. The officer said that the only thing pending in my case is the name check with the FBI, and that it has been pending since Nov 2005.

I tried to ask her about how to expedite my name check but in vein, until i mentioned that I am thinking about filing a WOM... she then made me fill a form G-14 and she hand wrote on it that my name check is pending with the FBI since November 2005. She explained to me that she will forward the form to another immigration officer on a different floor, who will follow up with the FBI on the status of the name check....

This is first time I hear that anybody has gotten them to move by mentioning lawsuit. Please keep us posted regarding further developments.

Best of luck,
snorlax

 

[mgzh]

my case got finally approved

thanks paz1960 and wenlock. without your help, i can not do it.

got approve notice from ausa. i believe that's true. i will sign the stipulation to close the case next week. finally wake up from nightmare. wish all the friends here get what they deserve.

 

[kefira]

Folks:

The AUSA and I filed this week a Case Managment Statement. The AUSA indicated the defendent's intention to file MTD on April 25th in the statement. I agreed to Summative Judgment and to no Discovery and Trial, as AUSA said to me that FBI and USCIS will issue a decision to my I-485 petition shortly.

* Did I do the right thing?

We have a Case Managment Conference this April 11th with the judge.

* What shall I expect?
* what sort of preparation shall I do before hand?

I informed AUSA that I intend to hire a lawyer to take it from here in the event that my case is not resolved prior to April 25; the date AUSA will file MTD.

* Any thoughts?

Much appreciation.

Listen to my advise. Go to the attorney as soon as you can. Do not do my mistake. You can oppose for MTD and ask immediately for summary judgement. AUSA buy time with MTD.