Name Check procedures in the case of delay and how Gov't regulate them
Hi OLKO,
Thanks for your support. what do you mean by "latest consideration of lazyCIS that FBI violated procedures of delay"? Is there any memo or ruling that shows FBI's violation? My FOIPA shows no records by the way.
One more question, do you have any suggestion for a good attorney (in Maryland) for this case? I am going to get an attorney for my case to prepare the MTD. I have already talked to one but if you have any suggestion, please let me know.
Part I. FBI Name Check procedures in the case of delay. The best I saw as was digged by LazyCIS
8 CFR 103.2(b)(18) defines conditions under which the adjudication may be withheld pending investigation (18) Withholding adjudication.
A district director may authorize withholding adjudication of a visa petition or other application if the district director determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion, where applicable, in connection with the application or petition, and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the application or petition would prejudice the ongoing investigation.
If an investigation has been undertaken and has not been completed within one year of its inception, the district director shall review the matter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of the district director’s determination, the investigation has not been completed, the matter shall be reviewed again by the district director and, if he/she concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, the matter shall be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, determines it is necessary to continue to withhold adjudication pending completion of the investigation, he/she shall review that determination every six months.
Therefore, if you application is pending more than 1 year, the USCIS should present the evidence that the district director reviewed your application. If it is pending more then 2 years, it should've been reviewed by the regional commissioner. If it is pending more than 2.5 years, it should've been reviewed by the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement. If it was not done, the USCIS "unlawfully withheld" adjudication.
Further, 8 CFR 103.2(b)(18) confirms non-discretionary duty to process an application:
(19) Notification. An applicant or petitioner shall be sent a written decision on his or her application, petition, motion, or appeal.
Part II. How congress intended to regulate FBI (again from LazyCIS)
To counter the argument that Congress gave the AG unlimited power over AOS applications and that Congress did not intend to impose any deadlines for AOS processing, I find that Chapter 13, Subchapter II is very useful.
Not only Congress expressed its intention in 1571(b) that "It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application", but
- 1572(2) says that "The term “immigration benefit application” means any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act"
- 1573 (a) Authority of the Attorney General:
The Attorney General shall take such measures as may be necessary to—
(1) reduce the backlog in the processing of immigration benefit applications, with the objective of the total elimination of the backlog 1 year after November 25, 2002;
(2) make such other improvements in the processing of immigration benefit applications as may be necessary to ensure that a backlog does not develop after such date; and
(3) make such improvements in infrastructure as may be necessary to effectively provide immigration services.
- 1574(b)(2)(C)(i) - subparagraph "Annual reports" specifically includes AOS:
(C) a status report on—
(i) applications for adjustments of status to that of an alien lawfully admitted for permanent residence;
- 1574(b)(2)(B)(iii) - annual report should include (this relates to AOS and other applications)
(iii) the number of applications or petitions pending for up to 6 months, 12 months, 18 months, 24 months, 36 months, and 48 months or more;
(confirming implicitly 180 days as intended processing time)
So clearly it was not Congress intention for application to linger significantly longer than 6 months.
(Standard disclaimer- I am not a lawyer so I do not know how this wording can/maybe interpreted by court and whether these laws are current)
Part III Good lawyer in Maryland
(Answering the last question of GC-pending)
Maybe
www.murthy.com (this site has 410- area code number) ?
The website publish a lot of useful info on immigration.
I strongly reccomend to register through pacer and review other people
cases throughout US in category "Other Statutory Actions"- this is where
WoM are published. Even if you hire a lawyer (which is typically beneficial)
you should still read about other similar cases and suggest them to your lawyer.
Some cons with lawyers.
Your lawyer (after you pay him) will almost instantly become
unreachable and rarely return your phone calls.
When (s)he returns- (s)he always say that everything is going as needed
and you just have to be patient.
Many immigration attorneys are not fully familiar with new tricks
pulled on us by USCIS/FBI duo.
For example, my attorney filed WoM without inclusion of FBI first.
The defense later told him that USCIS is not a responsible party for delay.
Bummer!!!
List of defendant is very important to start with (see discussion in this forum about who must be included).
Immigration lawyers who practice immigration law all thier life still can make mistake in your WoM because they rarely considered such cases in the past.
This process is new for them as it is for us.
Reason is that the category of people whose status is niether on visa nor PR
is relatively new. This category (let's call it AOS, we also can call it "in-limbo" or "INL") created artificially by FBI/USCIS relatively recently (on historical scale).
In all previous years of American history AoS category was transient.
Now it is our lives.
