It boils down to the question whether FBI name check is legally required by the law and regulations. If it is, then the FBI failed to complete a discrete action it is required to take and the court has jurisdiction under APA to review plaintiff's claim of unreasonable delay. If FBI name check is not legally required to adjudicate AOS, then plaitiff agrees to dismiss FBI as a defendant.
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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It boils down to the question whether FBI name check is legally required by the law and regulations. If it is, then the FBI failed to complete a discrete action it is required to take and the court has jurisdiction under APA to review plaintiff's claim of unreasonable delay. If FBI name check is not legally required to adjudicate AOS, then plaitiff agrees to dismiss FBI as a defendant.
susan ward
Banned
also see and join www.expatsvoice.org they are trying to petition for a compassionate visa on a case by case basis and amendment to the CSPA as not all children are protected from aging out
about name check
I called NSC and talked to an immigration officer concerning my name check. She said " The name check must be clear because the case is under review by an officer." But now I am wondering if it is under review by an officer because they try to deal with the lawsuit, not because the name check is clear? Does anyone know something about it? Thanks.
I called NSC and talked to an immigration officer concerning my name check. She said " The name check must be clear because the case is under review by an officer." But now I am wondering if it is under review by an officer because they try to deal with the lawsuit, not because the name check is clear? Does anyone know something about it? Thanks.
My GC Approved
Thank you guys for your replies. We just received our card production emails a few hours ago.
God bless you all!!!
If you want to see quick results, file a WOM. When name check is cleared, the government has no excuses at all. Writing to Mr. Bush should also help, but I'd do both just in case
Thank you guys for your replies. We just received our card production emails a few hours ago.
God bless you all!!!
N400-Misery
Registered Users (C)
Interesting story
Fellow USCIS / Homeland Security victims:
This is not related to N400, I485, or to the NNCP.
I just thought it would be a good idea to let everyone know the kind of USCIS we're dealing with nowadays. Please click below and read the story.
http://eggmann.blog.is/blog/eggmann/entry/389611/
==========================================
N400 - TSC
PD: 11/??/2006
FP: 12/??/2006
ID: Not yet
Congressman Inquiry: Pending Name Check 12/??/07
FBI Inquiry: Name Check In Process. 12/??/07
WoM: In preparation Stage.
Fellow USCIS / Homeland Security victims:
This is not related to N400, I485, or to the NNCP.
I just thought it would be a good idea to let everyone know the kind of USCIS we're dealing with nowadays. Please click below and read the story.
http://eggmann.blog.is/blog/eggmann/entry/389611/
==========================================
N400 - TSC
PD: 11/??/2006
FP: 12/??/2006
ID: Not yet
Congressman Inquiry: Pending Name Check 12/??/07
FBI Inquiry: Name Check In Process. 12/??/07
WoM: In preparation Stage.
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patricia_432
Registered Users (C)
Hi,
In the AUSA MTD, a declaration of Michael A. Cannon has been attached. In Cannon's declaration, he states very detail about the name check stages. But only last paragraph mentioned about my name check, a very short paragraph. It states "The FBI is performing its name check in response to USCIS's request in accordance with the procedures outlined above."
My question is, in my opposition, can I argue that FBI unreasonable delayed my name check because they couldn't tell what stage my name check is in?
In the AUSA MTD, a declaration of Michael A. Cannon has been attached. In Cannon's declaration, he states very detail about the name check stages. But only last paragraph mentioned about my name check, a very short paragraph. It states "The FBI is performing its name check in response to USCIS's request in accordance with the procedures outlined above."
My question is, in my opposition, can I argue that FBI unreasonable delayed my name check because they couldn't tell what stage my name check is in?
Of course. They have to provide specific details regarding the delay in processing of your name checK: how it differs from other millions of check processed by FBI, how complicated it is, how much time FBI agents spent trying to track down your background.
Wom order to expedite namecheck
ABUSADEH v. CHERTOFF(2007 U.S. Dist. LEXIS 94428)
It is encouraging to read this observation by the Judge(we could cite the same argument in I-485 too):
The record in this case shows that there may be no other adequate means to attain relief other than to compel the FBI to act. The affidavit of Michael Cannon, section chief of the National Name Check Program Section at the FBI, establishes that the FBI cannot "even estimate" when Abusadeh's case will be reached or how long it will take to complete the name-check background review. (Docket Entry No. 20, Ex. 3 at P 39). Without even an estimate as to when the FBI may complete its work, the statutory mandate imposed by Congress--that the USCIS must decide on a naturalization application within 120 days after the interview--is undermined.
The defendants are correct that delay, by itself, is an insufficient basis for mandamus. The record in this case, however, shows that the delay is extreme--three and one-half years--and its causes difficult to address. The result of the extreme delay in the FBI performing name checks, combined with the USCIS's decision to interview applicants before the FBI completed its name check, means that Congress's effort to expedite naturalization applications by limiting the USCIS's time to act on them is frustrated.
The fact that § 1447(b) does not apply to the agency defendants other than the USCIS is not a sufficient basis to dismiss those defendants. That motion is denied. However, the court does recognize that the statute does not limit the FBI's time to act and that the FBI has not had an opportunity to act after receiving an instruction from USCIS to expedite Abusadeh's name-check review. Rather than impose a limit on the FBI's time to complete the name check on Abusadeh at this stage, this court will remand and allow the FBI an opportunity to complete the name check in a reasonably prompt period after it receives a request from the USCIS to handle it on an expedited basis.
This court orders as follows:
Within 14 days, the USCIS must order the FBI to expedite the name check on Abusadeh.
Within 60 days from the date the FBI completes the name check and reports the results to the USCIS, or by April 2, 2008, whichever is earlier, the USCIS must report to this court, in writing, as to whether the FBI has completed the name check on Abusadeh and reported the results to the USCIS. If not, the USCIS must report on the status of the name check and the reasons for the failure to complete it.
Within 30 days of receiving the report of the results of the name check from the FBI, the USCIS must decide Abusadeh's naturalization application.
If the decision is to grant the application, the USCIS must permit Abusadeh to be naturalized as a citizen within 30 days.
ABUSADEH v. CHERTOFF(2007 U.S. Dist. LEXIS 94428)
It is encouraging to read this observation by the Judge(we could cite the same argument in I-485 too):
The record in this case shows that there may be no other adequate means to attain relief other than to compel the FBI to act. The affidavit of Michael Cannon, section chief of the National Name Check Program Section at the FBI, establishes that the FBI cannot "even estimate" when Abusadeh's case will be reached or how long it will take to complete the name-check background review. (Docket Entry No. 20, Ex. 3 at P 39). Without even an estimate as to when the FBI may complete its work, the statutory mandate imposed by Congress--that the USCIS must decide on a naturalization application within 120 days after the interview--is undermined.
The defendants are correct that delay, by itself, is an insufficient basis for mandamus. The record in this case, however, shows that the delay is extreme--three and one-half years--and its causes difficult to address. The result of the extreme delay in the FBI performing name checks, combined with the USCIS's decision to interview applicants before the FBI completed its name check, means that Congress's effort to expedite naturalization applications by limiting the USCIS's time to act on them is frustrated.
The fact that § 1447(b) does not apply to the agency defendants other than the USCIS is not a sufficient basis to dismiss those defendants. That motion is denied. However, the court does recognize that the statute does not limit the FBI's time to act and that the FBI has not had an opportunity to act after receiving an instruction from USCIS to expedite Abusadeh's name-check review. Rather than impose a limit on the FBI's time to complete the name check on Abusadeh at this stage, this court will remand and allow the FBI an opportunity to complete the name check in a reasonably prompt period after it receives a request from the USCIS to handle it on an expedited basis.
This court orders as follows:
Within 14 days, the USCIS must order the FBI to expedite the name check on Abusadeh.
Within 60 days from the date the FBI completes the name check and reports the results to the USCIS, or by April 2, 2008, whichever is earlier, the USCIS must report to this court, in writing, as to whether the FBI has completed the name check on Abusadeh and reported the results to the USCIS. If not, the USCIS must report on the status of the name check and the reasons for the failure to complete it.
Within 30 days of receiving the report of the results of the name check from the FBI, the USCIS must decide Abusadeh's naturalization application.
If the decision is to grant the application, the USCIS must permit Abusadeh to be naturalized as a citizen within 30 days.
patricia_432
Registered Users (C)
Thanks LazyCIS to answer my question above.
There is another document attached in the AUSA MTD mail, which states,
-----------------------------
[PROPOSED] ORDER RE:
FEDERAL DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION AND FAILURE TO STATE A CLAIM
Date: Jan 24, 2008
Time: 1:30pm
Ctrm: xxx Courthourse - Courtroom xx
Judge's name
-------------------------------
The date and time is a hearing that the AUSA scheduled for my case. The content of second page looks like a draft of the order that the judge grants the MTD. It says,
************************
IT IS HEREBY ORDERED that the Federal Defendants' motion to dismiss is GRANTED, and the Plaintiff's Complaint is dismissed _____prejudice.
PRESENTED BY:
the AUSA's name
*************************
What do I do with this document? Simply ignore it, or draft a "DENY MTD" document? Kind of like playing games. Thanks again.
There is another document attached in the AUSA MTD mail, which states,
-----------------------------
[PROPOSED] ORDER RE:
FEDERAL DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION AND FAILURE TO STATE A CLAIM
Date: Jan 24, 2008
Time: 1:30pm
Ctrm: xxx Courthourse - Courtroom xx
Judge's name
-------------------------------
The date and time is a hearing that the AUSA scheduled for my case. The content of second page looks like a draft of the order that the judge grants the MTD. It says,
************************
IT IS HEREBY ORDERED that the Federal Defendants' motion to dismiss is GRANTED, and the Plaintiff's Complaint is dismissed _____prejudice.
PRESENTED BY:
the AUSA's name
*************************
What do I do with this document? Simply ignore it, or draft a "DENY MTD" document? Kind of like playing games. Thanks again.
It depends on local rules for your district. Some districts require you to submit a proposed order. I'd draft deny MTD order to counter and attach it to your opposition.
check this out
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=eab41f5a63d3c7d15b9d34a8c70b7fb0
It's related to CSPA, but I do not see why we cannot apply it to other cases:
"The date that a visa number becomes available is the first day of the month of the Department of State (DOS) Visa Bulletin, which indicates availability of a visa for that preference category. Of course, if upon approval of the Form I-130, Petition for Alien Relative, a visa number is already available according to the DOS Visa Bulletin, the date that a visa number becomes available is the approval date of the Form I-130."
...
"The date that a visa number becomes available is the approval date of the immigrant petition if, according to the DOS Visa Bulletin, a visa number was already available for that preference category on that date of approval. If, upon approval of the immigrant petition, a visa number was not available, then the date for determining age is to be the first day of the month of the DOS Visa Bulletin which indicates availability of a visa for that preference category".
"(5) Visa Availability Date Regression . If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, USCIS should retain the Form I-485 and note the visa availability date at the time the Form I-485 was filed. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” using the visa availability date marked on the Form I-485."
Are we being scammed by the USCIS? Looks like if a visa number is available when I-140 is approved or it becomes available at any time after that, that should be the date when visa number is assigned to I-485 application.
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=eab41f5a63d3c7d15b9d34a8c70b7fb0
It's related to CSPA, but I do not see why we cannot apply it to other cases:
"The date that a visa number becomes available is the first day of the month of the Department of State (DOS) Visa Bulletin, which indicates availability of a visa for that preference category. Of course, if upon approval of the Form I-130, Petition for Alien Relative, a visa number is already available according to the DOS Visa Bulletin, the date that a visa number becomes available is the approval date of the Form I-130."
...
"The date that a visa number becomes available is the approval date of the immigrant petition if, according to the DOS Visa Bulletin, a visa number was already available for that preference category on that date of approval. If, upon approval of the immigrant petition, a visa number was not available, then the date for determining age is to be the first day of the month of the DOS Visa Bulletin which indicates availability of a visa for that preference category".
"(5) Visa Availability Date Regression . If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, USCIS should retain the Form I-485 and note the visa availability date at the time the Form I-485 was filed. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” using the visa availability date marked on the Form I-485."
Are we being scammed by the USCIS? Looks like if a visa number is available when I-140 is approved or it becomes available at any time after that, that should be the date when visa number is assigned to I-485 application.
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good news on name check
The US attorney called me and confirmed that my name check was cleared on December 13th. And she also told me that an immigration officer are processing my EB1 petition ( although I have a EB2 petition approved in 2005) and will make a decision soon on that. I agreed to give the defendants 2 months extension and they don't have to file MTD or an answer before that. And I agreed to withdraw discovery request since it is mostly related to name check and FBI.
I hope that NSC won't deny my EB1 case as a revenge. But we will see what is going to happen...
The US attorney called me and confirmed that my name check was cleared on December 13th. And she also told me that an immigration officer are processing my EB1 petition ( although I have a EB2 petition approved in 2005) and will make a decision soon on that. I agreed to give the defendants 2 months extension and they don't have to file MTD or an answer before that. And I agreed to withdraw discovery request since it is mostly related to name check and FBI.
I hope that NSC won't deny my EB1 case as a revenge. But we will see what is going to happen...
visa number availability and actual usage
Seems to me that visa number availability and actual usage is the issue here.
Of specific interest is the retrogression applicants(applicants from heavy demand countries).
However, with each approval an actual visa number is claimed from the DOS pool.
The determination of the priority date is not a science.
So, even if visa numbers are available under a country pool, it is arbitrarily denied to a retrogressed applicant on the standing that they are not currently eligible to claim it(I am yet to come across a statute that gives power to this determination of priority date)
So we always stand to claim that visa number(under per-country limits) if we can prove that priority number determination does not have legal standing.
However, if the per-country cap is reached.. We could argue that following only if all employment based visa numbers have been exhausted..
i.e.. reclaim unused visa numbers from prior years based on congress..act(2000)
In the alternative, we could plead like przhebelskaya case.. Like diversity visa numbers.. retrogressed applicants have very stringent time limits to obtain a visa number and govt. inaction was the cause of we losing that benefit. ...
We should dig up actual cases and see how it panned out (or together contract a good lawyer to do this specific investigation)
I think the following case is related:
NAZEER HASWANEE, versus U.S. ATTORNEY GENERAL
No. 06-12636 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
471 F.3d 1212; 2006 U.S. App. LEXIS 30088; 20 Fla. L. Weekly Fed. C 156
1. As long as
Seems to me that visa number availability and actual usage is the issue here.
Of specific interest is the retrogression applicants(applicants from heavy demand countries).
However, with each approval an actual visa number is claimed from the DOS pool.
The determination of the priority date is not a science.
So, even if visa numbers are available under a country pool, it is arbitrarily denied to a retrogressed applicant on the standing that they are not currently eligible to claim it(I am yet to come across a statute that gives power to this determination of priority date)
So we always stand to claim that visa number(under per-country limits) if we can prove that priority number determination does not have legal standing.
However, if the per-country cap is reached.. We could argue that following only if all employment based visa numbers have been exhausted..
i.e.. reclaim unused visa numbers from prior years based on congress..act(2000)
In the alternative, we could plead like przhebelskaya case.. Like diversity visa numbers.. retrogressed applicants have very stringent time limits to obtain a visa number and govt. inaction was the cause of we losing that benefit. ...
We should dig up actual cases and see how it panned out (or together contract a good lawyer to do this specific investigation)
I think the following case is related:
NAZEER HASWANEE, versus U.S. ATTORNEY GENERAL
No. 06-12636 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
471 F.3d 1212; 2006 U.S. App. LEXIS 30088; 20 Fla. L. Weekly Fed. C 156
1. As long as
Sounds like a plan. Check the last few pages on the forum, we've already discussed the same subject in details.
Exactly. We should argue that the correct interpretation of the Congressional intent in the INA is
1. Visa number is assigned when a petition to get an immigrant visa is filed (I-485).
2. Visa number does not expire when the fiscal year ends. If the USCIS approves application in the different fiscal year, the visa number is subtracted from the pool for the year when the visa number was originally assigned. (Przhebelskaya, Galvez, Basova cases).
3. The PD is the date when I-140 is filed and it has nothing to do with LC date. (like I-130 petition)
hmmmm... so do you think that our GCs should reflect an approval date of our I140 filing which in my case is 2004 March ? You mean that I would be eligible for citizenship by next year ?
The usage of LC was to correct another injustice. Basically when people filed LC in various states, each labor department acted in its own speed. So a person who file LC in 2001 in CA would have to wait for 3 years whereas a person who filed LC in Vermont in 2002 could have it cleared in a couple of months. It is to correct this imbalance that uscis/INS issued a proposed rule change and then codified in in Federal register. It is not in the statutes but is only through FR that this rule change was effected.
We should explore this a bit more. We might be eligible for class action lawsuit. The members of the class would be all Employment based I485 petitioners who were approved later than the year they applied their I485.
The usage of LC was to correct another injustice. Basically when people filed LC in various states, each labor department acted in its own speed. So a person who file LC in 2001 in CA would have to wait for 3 years whereas a person who filed LC in Vermont in 2002 could have it cleared in a couple of months. It is to correct this imbalance that uscis/INS issued a proposed rule change and then codified in in Federal register. It is not in the statutes but is only through FR that this rule change was effected.
We should explore this a bit more. We might be eligible for class action lawsuit. The members of the class would be all Employment based I485 petitioners who were approved later than the year they applied their I485.
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There is some logic in using LC date, but it's no better than I-140 filing date. Injustice remains the same. If LC is long-pending and a person loses the job, s/he is at disadvantage comparing to somebody who got LC approved in a few months. Also, a person can get LC, wait for a year or so, file I-140 and get ahead of somebody who filed LC a day later but quickly filed I-140 after LC approval. I do not think it's fair.
We should definitely think about class action lawsuit to backdate our GCs or to waive/reduce 5 year permanent residency requirement when we apply for citizenship (8 USC 1427(a)).
We can ask Rajiv himself.