Looks like non-stop "good news" season. I love it!
Very happy for you, TLong, iv2101, aguacate1 !!!
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
Looks like non-stop "good news" season. I love it!
Very happy for you, TLong, iv2101, aguacate1 !!!Little off tpoic but relevant, how long to stay with the petitioner AFTER GC?
Found this from another thread on the forum
http://www.usvisahelp.com/index.php...:issues-of-intent&option=com_content&Itemid=5
It will apply to how long to stay with the petitioner AFTER receiving the GC.
"In order to determine whether the alien truthfully represented his or her intent to remain with his or her petitioning U.S. employer after receiving the green card, the USCIS uses the standard created by Seihoon v. Levy. That is, USCIS examines the "rapid course of events" following the alien’s receipt of his or her green card. The Department of State has reduced this rule to a 30-60-90 day formula which USCIS generally follows. If an alien ends employment with the petitioning employer within 30 days of receiving his/her green card, then it is highly likely that USCIS will decide that the alien’s intent at the Consulate interview was not, as he/she stated, to remain with the petitioning employer indefinitely. After 60 days have passed, it is less likely (but still risky) that USCIS will determine that the alien lied about his/her intent at the Consulate interview. And after 90 days, it is highly unlikely that USCIS will have a problem with the alien’s change of employment."
Found this from another thread on the forum
http://www.usvisahelp.com/index.php...:issues-of-intent&option=com_content&Itemid=5
It will apply to how long to stay with the petitioner AFTER receiving the GC.
"In order to determine whether the alien truthfully represented his or her intent to remain with his or her petitioning U.S. employer after receiving the green card, the USCIS uses the standard created by Seihoon v. Levy. That is, USCIS examines the "rapid course of events" following the alien’s receipt of his or her green card. The Department of State has reduced this rule to a 30-60-90 day formula which USCIS generally follows. If an alien ends employment with the petitioning employer within 30 days of receiving his/her green card, then it is highly likely that USCIS will decide that the alien’s intent at the Consulate interview was not, as he/she stated, to remain with the petitioning employer indefinitely. After 60 days have passed, it is less likely (but still risky) that USCIS will determine that the alien lied about his/her intent at the Consulate interview. And after 90 days, it is highly unlikely that USCIS will have a problem with the alien’s change of employment."
Magical date
There seem to be different dates floating around as to when the backlog will clear or most or all of the cases eligible pursuant to new memo will be adjudicated? March 10, March 30?
http://www.immigrationportal.com/showthread.php?t=174845&page=65
Is it just the standard 30 day brush off from IOs?
Anyone else has any concrete info? A friendly IO at phone call or InfoPass, please five details like which service center, or which city for InfoPass?
There seem to be different dates floating around as to when the backlog will clear or most or all of the cases eligible pursuant to new memo will be adjudicated? March 10, March 30?
http://www.immigrationportal.com/showthread.php?t=174845&page=65
Is it just the standard 30 day brush off from IOs?
Anyone else has any concrete info? A friendly IO at phone call or InfoPass, please five details like which service center, or which city for InfoPass?
LAZYCIS,
It would never happen without your constant help and advice. We are very grateful to you. by the way, I have just got an e-mail from the Congressman Rothman's office thanking me for forwarding the MEMO and saying that they have used it to help many other families. I replied that you are to be credited.
Guys,
here is our timeline:
Dec.6 2006 filed I485, employment-based, I140 previously approved, PD current
June 2007, I485 denied as "inadmissible"
July 2007, filed MOTIC arguing that USCIS made an error in the matter of law in finding us inadmissible (MOTICs fedexed from the Congressman's office, with a request for expedite processing due to the obvious service error).
Since there was no reply to the MOTICs, to the Congressional request and e-mails of the AILA liaison, we then started working on the lawsuit ourselves and requested help from the gurus here. Fr.om that point on it was Lazycis who advised us on each and every step and to whom we are very grateful.
Sep.27, 2007, filed a complaint under APA, pro se (with LAZYCIS' help)
Sept. 27, 2007 summons served on AUSA
Oct 1, 2007 , summons served on Nebraska
Oct. 11, 2007,e-mail to the lawyer from Heinauer (on official letterhead) that the petitions are approved.
Oct. 12, 2007, I797 from Nebraska stating that I485 cases are reopened.
Nov. 2007 - reply from Nebraska to the Congressman re incongruity in messages that it is due NC delay
Nov. - Faxes to Nebraska from us and from the employer (a cultural non-profit working to the benefit of the US) requesting expedite processing, criteria - service error and cultraul non-profit working for the benefit of the country. Reply by mail to us - standard printout "filing a WOM is not a reason for expedite processing". Service error never mentioned. We filed amended complaint, adding WOM and requesting USCIS to expedite FBI processing, due to service error.
AUSA requested 45 days extension, to reply by Jan.11.
Nov. 7, electronically filed EADs and APs.
Nov. 30, biometrics for EADs
Dec. 1, 2007 - mailed photos for APs and documents for EADs
Jan.11, 2008 - AUSA requested 2 nd extension, 30 days.
Jan. 11, 2008. The 2nd extension granted until Feb. 11, 2008 over our opposition and despite AUSA's violation of judge's own rules that "requests for extensions should be filed 48 hrs before the deadline". However, ordered that no further extensions will be granted.
Jan. 31 - 1 EAD approved, card received on Feb. 4
Feb. 5 - 90 days since EAD receipt, no changes in 2nd EAD case. E-mailed AUSA.
Feb. 6 - InfoPass appt. re EAD.
Feb. 7 - filed pleading with the new Memo, faxed expedite request to Nebraska, e-mail approving EAD
Feb. 10 - LUD on I485 for the principal applicant
Feb. 11. - AUSA did not oppose the pleading, requested time until Feb 26, LUD on I485 for the principal applicant
Feb. 12, 2008 - I485 still said case denied in June 2007. I called Nebraska using POJ and was lucky to find a HUMAN (not just a a live person). At first she said, as always , "your case was denied in June 2007, what do you want". I explained to her all the situation, that it was service error which they finally admitted and reopened the cases, that is why we have got the EAD. She pulled out all our cases, checked them, finally she said, @you have a reason, I can request expedite on your cases. Which ones do you want to expedite, APs or I485s?" Logically, I said I485s. She made a request for each one of them, asked my e-mail, gave me the expedite referral numbers for each case and said it would be solved within 5 days. I was on the phone with her for nearly two hours. I thanked her and said that that she was the first human being I have met in the USCIS and apologized if I was rude and demanding. She said she understands how frustrated people are and she apologized if she was rude, too.
I did not thank her well enough - it was not five days, but less than an hour when we got three approval e-mails. The notice on all three cases in our portfolio has changed, too - approval.
Once again, thanks to Lazycis!
Good luck to everyone!
It would never happen without your constant help and advice. We are very grateful to you. by the way, I have just got an e-mail from the Congressman Rothman's office thanking me for forwarding the MEMO and saying that they have used it to help many other families. I replied that you are to be credited.
Guys,
here is our timeline:
Dec.6 2006 filed I485, employment-based, I140 previously approved, PD current
June 2007, I485 denied as "inadmissible"
July 2007, filed MOTIC arguing that USCIS made an error in the matter of law in finding us inadmissible (MOTICs fedexed from the Congressman's office, with a request for expedite processing due to the obvious service error).
Since there was no reply to the MOTICs, to the Congressional request and e-mails of the AILA liaison, we then started working on the lawsuit ourselves and requested help from the gurus here. Fr.om that point on it was Lazycis who advised us on each and every step and to whom we are very grateful.
Sep.27, 2007, filed a complaint under APA, pro se (with LAZYCIS' help)
Sept. 27, 2007 summons served on AUSA
Oct 1, 2007 , summons served on Nebraska
Oct. 11, 2007,e-mail to the lawyer from Heinauer (on official letterhead) that the petitions are approved.
Oct. 12, 2007, I797 from Nebraska stating that I485 cases are reopened.
Nov. 2007 - reply from Nebraska to the Congressman re incongruity in messages that it is due NC delay
Nov. - Faxes to Nebraska from us and from the employer (a cultural non-profit working to the benefit of the US) requesting expedite processing, criteria - service error and cultraul non-profit working for the benefit of the country. Reply by mail to us - standard printout "filing a WOM is not a reason for expedite processing". Service error never mentioned. We filed amended complaint, adding WOM and requesting USCIS to expedite FBI processing, due to service error.
AUSA requested 45 days extension, to reply by Jan.11.
Nov. 7, electronically filed EADs and APs.
Nov. 30, biometrics for EADs
Dec. 1, 2007 - mailed photos for APs and documents for EADs
Jan.11, 2008 - AUSA requested 2 nd extension, 30 days.
Jan. 11, 2008. The 2nd extension granted until Feb. 11, 2008 over our opposition and despite AUSA's violation of judge's own rules that "requests for extensions should be filed 48 hrs before the deadline". However, ordered that no further extensions will be granted.
Jan. 31 - 1 EAD approved, card received on Feb. 4
Feb. 5 - 90 days since EAD receipt, no changes in 2nd EAD case. E-mailed AUSA.
Feb. 6 - InfoPass appt. re EAD.
Feb. 7 - filed pleading with the new Memo, faxed expedite request to Nebraska, e-mail approving EAD
Feb. 10 - LUD on I485 for the principal applicant
Feb. 11. - AUSA did not oppose the pleading, requested time until Feb 26, LUD on I485 for the principal applicant
Feb. 12, 2008 - I485 still said case denied in June 2007. I called Nebraska using POJ and was lucky to find a HUMAN (not just a a live person). At first she said, as always , "your case was denied in June 2007, what do you want". I explained to her all the situation, that it was service error which they finally admitted and reopened the cases, that is why we have got the EAD. She pulled out all our cases, checked them, finally she said, @you have a reason, I can request expedite on your cases. Which ones do you want to expedite, APs or I485s?" Logically, I said I485s. She made a request for each one of them, asked my e-mail, gave me the expedite referral numbers for each case and said it would be solved within 5 days. I was on the phone with her for nearly two hours. I thanked her and said that that she was the first human being I have met in the USCIS and apologized if I was rude and demanding. She said she understands how frustrated people are and she apologized if she was rude, too.
I did not thank her well enough - it was not five days, but less than an hour when we got three approval e-mails. The notice on all three cases in our portfolio has changed, too - approval.
Once again, thanks to Lazycis!
Good luck to everyone!
Magical date - April 30,2008
According to AILA SCOPS:
http://www.aila.org/content/default.aspx?docid=8814
"
SCOPS liaison has confirmed that the service centers are conducting "sweeps" to find adjustment of status cases that can be reviewed for adjudication under the changes in background check procedures announced by USCIS on February 4, 2008. AILA Doc. No. 08021366.
"
The April 30, 2008 date is according to another user on the forum who has apparently received further details from his lawyer about the document posted at AILA website.
http://www.immigrationportal.com/showpost.php?p=1862064&postcount=1948
"
AILA-Service Center Operations (SCOPS) Liaison has confirmed that the service centers are conducting "sweeps" to find adjustment of status cases that can be reviewed for adjudication under the changes in background check procedures announced by USCIS on February 4, 2008. AILA national has asked USCIS HQ for information on processing of adjustment of status cases at local offices that can be reviewed under the same memo, and many chapters have already contacted local USCIS offices for further information on local processing.
SCOPS has asked AILA members to hold off on submitting liaison inquiries on cases at the service centers that were delayed due to background checks until after April 30, 2008. The USCIS hopes to have identified and taken action on cases by that date.
"
According to AILA SCOPS:
http://www.aila.org/content/default.aspx?docid=8814
"
SCOPS liaison has confirmed that the service centers are conducting "sweeps" to find adjustment of status cases that can be reviewed for adjudication under the changes in background check procedures announced by USCIS on February 4, 2008. AILA Doc. No. 08021366.
"
The April 30, 2008 date is according to another user on the forum who has apparently received further details from his lawyer about the document posted at AILA website.
http://www.immigrationportal.com/showpost.php?p=1862064&postcount=1948
"
AILA-Service Center Operations (SCOPS) Liaison has confirmed that the service centers are conducting "sweeps" to find adjustment of status cases that can be reviewed for adjudication under the changes in background check procedures announced by USCIS on February 4, 2008. AILA national has asked USCIS HQ for information on processing of adjustment of status cases at local offices that can be reviewed under the same memo, and many chapters have already contacted local USCIS offices for further information on local processing.
SCOPS has asked AILA members to hold off on submitting liaison inquiries on cases at the service centers that were delayed due to background checks until after April 30, 2008. The USCIS hopes to have identified and taken action on cases by that date.
"
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Mootness exception
Lazy and others,
I have submitted my reply brief and the AILF is in contact to see if AUSA agrees with their filing amicus out of time. No response from AUSA yet.
I think it is a good idea to start working on mootness exception and do some research. Do you think that the new memo has any impact on making mootness harder to fight? We all know that this is just an internal memo, neither statute nor regulation.
Congratulations to TLongTLong and other happy members.
Lazy and others,
I have submitted my reply brief and the AILF is in contact to see if AUSA agrees with their filing amicus out of time. No response from AUSA yet.
I think it is a good idea to start working on mootness exception and do some research. Do you think that the new memo has any impact on making mootness harder to fight? We all know that this is just an internal memo, neither statute nor regulation.
Congratulations to TLongTLong and other happy members.
N400-Misery
Registered Users (C)
I did see that immediately ...
Lazycis:
You scare me when you say "(At least for AOS)". Wouldn't the regulations pertaining to the background checks be the same for AOS and N400 ?
I saw that part immediately and I plan to include it in my complaint.
Any ways, I have an appointment with a good attorney tomorrow and I'm thinking about giving him the OK to go ahead and file a WoM on behalf of me and my two other friends. He had stated that he would like to claim discrimination based on national origin in his complaint. Would you suggest anything else or possibly any questions for him ?.
All three of us are an N400 applicants with no-interview. We were given a 50% chance of success. I don't really care, I want to do as much damage as possible, and I plan to appeal if I don't get it the first time.
Thanks
============
N400 (Mine) N400 (Friend 1) N400 (Friend 2)
PD: 11/??/06 PD: 07/??/06 PD: Apr /??/ 06
FP: 12/09/06 FP: 08/??/06 FP: MAY /??/ 06
IL: ???????? IL: ???????? IL: ??????????
I think we missed an important part of the new memo in all this excitment.
"In the context of removal proceedings, ICE has determined that FBI fingerprint checks and Interagency Border Inspection Services (IBIS) checks are the required checks for purposes of the applicable regulations."
Wait a minute, isn't IJ able to grant AOS in removal proceedings? It means that the DHS acknowledges that it wrongfully interpreted regulations for all these years and that name check is not required by law (at least for AOS) as we were saying all along!
I love also this part: "in the unlikely event that FBI name checks reveal actionable information"
Lazycis:
You scare me when you say "(At least for AOS)". Wouldn't the regulations pertaining to the background checks be the same for AOS and N400 ?
I saw that part immediately and I plan to include it in my complaint.
Any ways, I have an appointment with a good attorney tomorrow and I'm thinking about giving him the OK to go ahead and file a WoM on behalf of me and my two other friends. He had stated that he would like to claim discrimination based on national origin in his complaint. Would you suggest anything else or possibly any questions for him ?.
All three of us are an N400 applicants with no-interview. We were given a 50% chance of success. I don't really care, I want to do as much damage as possible, and I plan to appeal if I don't get it the first time.
Thanks
============
N400 (Mine) N400 (Friend 1) N400 (Friend 2)
PD: 11/??/06 PD: 07/??/06 PD: Apr /??/ 06
FP: 12/09/06 FP: 08/??/06 FP: MAY /??/ 06
IL: ???????? IL: ???????? IL: ??????????
I called the 800 NSC number today and got the same answer as above, i.e. wait till 03/10/08 and if I do not hear anything from USCIS by then, I should call the 800 number again. Also, the other post from jefkorn (http://www.immigrationportal.com/sho...174845&page=65) shows several posters giving the March 10th date as some sort of a cut-off date. I hope this comes true!!
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The regulations are different. For N400 there is also a public law which prohibits USCIS to adjudicate N400 until a definite response is received from FBI regarding background check. However, my reading of regulations is that "background check" means fingerprint check and nothing more. Name check is nowhere to found in regulations. Plus the USCIS violated APA when new name check procedures were implemented in Dec 2002 without public knowledge.
You can also claim violation of regulations regarding withholding of adjudication (see 8 CFR 103).
Discrimination based on national origin will be hard to prove. Plus, the discrimination of aliens is permissible according to the Supreme Court.
Wow, it looks like NSC people know somewhat what's going on. I have tried the Vermont Service center a few times but every time, the IO has no clue about the memo. One of them confirmed that it is true (after putting me on hold), but no one was able to give me any type of time line as to by when we could expect them to do something about it.
Judge Baylson is unbelievable! Another wonderful piece of writing, putting the final nail into name check coffin.
"USCIS is enjoined, pending further Order of Court, from using the FBI name
check program as a factor in the decision making as to these Plaintiffs, unless within thirty (30) days, USCIS has initiated a notice and comment procedure, pursuant to the APA, concerning its use of the FBI name check procedure."
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hornshonking
Registered Users (C)
Chicago DO
Hello guys,
I have a friend who is stuck in name check in AOS and now filed a WOM. He just got an e-mail from DA saying that, Chicago DO has recently adopted the policy of moving on with the applications 120 days after interviews regardless of whether FBI completed the namecheck or not.
Last year we had filed a 1447b for my wife. Chicago DO was our office, maybe suits as ours helped them to get to that decision. I am sure more offices would follow.
Hello guys,
I have a friend who is stuck in name check in AOS and now filed a WOM. He just got an e-mail from DA saying that, Chicago DO has recently adopted the policy of moving on with the applications 120 days after interviews regardless of whether FBI completed the namecheck or not.
Last year we had filed a 1447b for my wife. Chicago DO was our office, maybe suits as ours helped them to get to that decision. I am sure more offices would follow.
The Memo can be found on USCIS website by clicking on "Law & Regulations" in the top menu and then clicking on "Policy Memoranda" in the Left menu. It should be listed under "February 2008". The announcement is titled "Revised National Security Adjudication and Reporting Requirements". Here's the link to the "Policy Memoranda" page:
http://www.uscis.gov/vgn-ext-templa...nnel=7dc68f236e16e010VgnVCM1000000ecd190aRCRD
Lazycis already posted the direct link to the PDF itself on Page 520 of this thread.
Judge Baylson definitely deserves flowers!! He was actually appointed by President Bush.
Good News-- At Least For Detroit Applicants
I took an INFOPASS this morning at the Detroit office to complain about my EAD pending for longer than 90 days. i was shocked when the IO told me she cannot extend nor issue a new one, all she was able to do was to email NSC to accelerate my EAD.
Then i asked about my 485 and she showed me a print-out showing my case assigned to a supervisor on Feb 12. She knew about the memo and confirmed that they are sweeping through all pending cases.
she told me that they had some other memo's issued internally from Washington. she know nothing about march 10 or april 30 .
She told me that they hired 1500 new IO's at the Detroit office and they called back 800 retiree to work on the backloged cases.
It felt good to see the initials of the supervisor that is handeling my case and to know that its done here locally. I think they are really working on clearing all theses cases up. Someone upthere wants this done bad.
i am not sure if this was a coincidence or not, but had mailed a letter (registered mail) and they received it on the 12 in the morning.
i am not sure if this helped get the case assigned or not, but below is what i wrote. you guys been sending letters left and right and i don;t think it will hurt to send one more, a final one i hope.
i will keep you posted. GOOD LUCK EVERYONE
(name and address)
USCIS Detroit field office
333 Mount Elliott
Detroit, MI 48207.
February 11, 2008
Dear Immigration officer
In the light of the new memo issued by Mr. Michael Aytes dated Feb 4, 2008 concerning the USCIS revised name check guidance, I kindly request you to expedite the adjudication of my I-485 since its been pending name check for 21 months.
My wife and I were interviewed by officer Delarosa at the Detroit office on May 10, 2006 and had the I-130 approved.
Should you have any questions or concerns, please do not hesitate to contact me.
Sincerely
X
XXXXXXXXX
Alien # A XXXXXXXXX
I-485 : MSCXXXXXXXXX PENDING
I-130 : MSCXXXXXXXXX APPROVED
I-765 : MSCXXXXXXXXX APPROVED
I-131 : MSCXXXXXXXXX APPROVED
I-765 : MSCXXXXXXXXX APPROVED
I-131 : MSCXXXXXXXXX APPROVED
I-765 : LINXXXXXXXXXX PENDING
I took an INFOPASS this morning at the Detroit office to complain about my EAD pending for longer than 90 days. i was shocked when the IO told me she cannot extend nor issue a new one, all she was able to do was to email NSC to accelerate my EAD.
Then i asked about my 485 and she showed me a print-out showing my case assigned to a supervisor on Feb 12. She knew about the memo and confirmed that they are sweeping through all pending cases.
she told me that they had some other memo's issued internally from Washington. she know nothing about march 10 or april 30 .
She told me that they hired 1500 new IO's at the Detroit office and they called back 800 retiree to work on the backloged cases.
It felt good to see the initials of the supervisor that is handeling my case and to know that its done here locally. I think they are really working on clearing all theses cases up. Someone upthere wants this done bad.
i am not sure if this was a coincidence or not, but had mailed a letter (registered mail) and they received it on the 12 in the morning.
i am not sure if this helped get the case assigned or not, but below is what i wrote. you guys been sending letters left and right and i don;t think it will hurt to send one more, a final one i hope.
i will keep you posted. GOOD LUCK EVERYONE
(name and address)
USCIS Detroit field office
333 Mount Elliott
Detroit, MI 48207.
February 11, 2008
Dear Immigration officer
In the light of the new memo issued by Mr. Michael Aytes dated Feb 4, 2008 concerning the USCIS revised name check guidance, I kindly request you to expedite the adjudication of my I-485 since its been pending name check for 21 months.
My wife and I were interviewed by officer Delarosa at the Detroit office on May 10, 2006 and had the I-130 approved.
Should you have any questions or concerns, please do not hesitate to contact me.
Sincerely
X
XXXXXXXXX
Alien # A XXXXXXXXX
I-485 : MSCXXXXXXXXX PENDING
I-130 : MSCXXXXXXXXX APPROVED
I-765 : MSCXXXXXXXXX APPROVED
I-131 : MSCXXXXXXXXX APPROVED
I-765 : MSCXXXXXXXXX APPROVED
I-131 : MSCXXXXXXXXX APPROVED
I-765 : LINXXXXXXXXXX PENDING
Yes.. they want to adjudicate quickly.. cos their grants depend on them.
(USCIS ombudsman report 07).
Did you file an appeal ?
(USCIS ombudsman report 07).
Did you file an appeal ?
NO i did not file the appeal.
my chances for winning the appeal were very slim. michigan is not friendly at all, not a single case of AOS been won in court.
Feb 12, WOM MTD granted(plaintiff did not file response)
CASE NO. 07cv0296-LAB
JIANQIANG YU, Pro Se, Plaintiff, vs. MICHAEL CHERTOFF
S.D. Cal, 2008 U.S. Dist. LEXIS 10244, Feb 12, 2008
Judge LARRY ALAN BURNS
-------------------------------------
The deadline for Yu to file an Opposition passed on February 5, 2008, with no response from him. "If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of motions or other requests for ruling by the court." Civ. L.R. 7.1.f.3.c. Pursuant to Civil Local Rule 7.1.d.1, the court finds the issues presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motion is GRANTED.
He alleges he properly filed an I-485 Application To Register Permanent [*3] Resident or Adjust Status pursuant to Section 245 of the Immigration & Naturalization Act on June 13, 2005, with supporting documentation..
Defendants move to dismissal the Complaint on jurisdictional grounds and on grounds Yu is not entitled to immediate adjudication or approval of his application for permanent resident status. While he awaits final agency action, Yu "enjoys lawful nonimmigrant status in the United States as an H-1 B temporary alien worker based on a nonimmigrant worker petition filed on his behalf by The Scripps Research Institute," a status "valid through March 24, 2008" and "renewable upon application by the employer." 2 Heinauer Decl. P 6.
Defendants challenge Yu's allegations of unreasonable delay or failure to act on his application on grounds: his application has been received, his background investigation initiated, his fingerprints taken and updated, and his preliminary [*7] border screening completed (Heinauer Decl. PP 4, 7, 12-17, 19-22); the Nebraska Service Center alone is currently processing "approximately 187,930 employment-based applications for adjustment of status" (Heinauer Decl. P 19); and no visa is presently available to Plaintiff (Heinauer Decl. PP 7-9).
Defendants emphasize they "will adjudicate Plaintiff's application as soon as processing is complete" and a visa becomes available. Mot. 1:23, 2:3. They demonstrate Yu's circumstances do not warrant resort submission of an exceptional request to the FBI to expedite his case, a process available in only limited circumstances not applicable to the facts of his situation. Moreover, any expedited name check process in Yu's case "would not effect a more rapid adjudication of the case" because "there are no visa numbers available to him and his family under the current visa bulletin." 3 Heinauer Decl. PP 22-24.
From the evidentiary record accompanying the Motion, unrebutted by any opposition papers, USCIS is processing Yu's application, as well as his family members' the applications for adjustment of status, in accordance with standard, regulated procedures. The associated delays are beyond its control, and would in any event fall within agency discretionary powers with which this court may not interfere. Finally, Congressional action limiting the availability of the type of visa Yu seeks forecloses the adjudicatory relief he seeks, from any source at this time. In addition [*14] to the considerations discussed above, the court construes Yu's failure to oppose the Motion as consent to dismissal of his Complaint. Civ. L.R. 7.1.f.3.c.
CASE NO. 07cv0296-LAB
JIANQIANG YU, Pro Se, Plaintiff, vs. MICHAEL CHERTOFF
S.D. Cal, 2008 U.S. Dist. LEXIS 10244, Feb 12, 2008
Judge LARRY ALAN BURNS
-------------------------------------
The deadline for Yu to file an Opposition passed on February 5, 2008, with no response from him. "If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of motions or other requests for ruling by the court." Civ. L.R. 7.1.f.3.c. Pursuant to Civil Local Rule 7.1.d.1, the court finds the issues presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motion is GRANTED.
He alleges he properly filed an I-485 Application To Register Permanent [*3] Resident or Adjust Status pursuant to Section 245 of the Immigration & Naturalization Act on June 13, 2005, with supporting documentation..
Defendants move to dismissal the Complaint on jurisdictional grounds and on grounds Yu is not entitled to immediate adjudication or approval of his application for permanent resident status. While he awaits final agency action, Yu "enjoys lawful nonimmigrant status in the United States as an H-1 B temporary alien worker based on a nonimmigrant worker petition filed on his behalf by The Scripps Research Institute," a status "valid through March 24, 2008" and "renewable upon application by the employer." 2 Heinauer Decl. P 6.
Defendants challenge Yu's allegations of unreasonable delay or failure to act on his application on grounds: his application has been received, his background investigation initiated, his fingerprints taken and updated, and his preliminary [*7] border screening completed (Heinauer Decl. PP 4, 7, 12-17, 19-22); the Nebraska Service Center alone is currently processing "approximately 187,930 employment-based applications for adjustment of status" (Heinauer Decl. P 19); and no visa is presently available to Plaintiff (Heinauer Decl. PP 7-9).
Defendants emphasize they "will adjudicate Plaintiff's application as soon as processing is complete" and a visa becomes available. Mot. 1:23, 2:3. They demonstrate Yu's circumstances do not warrant resort submission of an exceptional request to the FBI to expedite his case, a process available in only limited circumstances not applicable to the facts of his situation. Moreover, any expedited name check process in Yu's case "would not effect a more rapid adjudication of the case" because "there are no visa numbers available to him and his family under the current visa bulletin." 3 Heinauer Decl. PP 22-24.
From the evidentiary record accompanying the Motion, unrebutted by any opposition papers, USCIS is processing Yu's application, as well as his family members' the applications for adjustment of status, in accordance with standard, regulated procedures. The associated delays are beyond its control, and would in any event fall within agency discretionary powers with which this court may not interfere. Finally, Congressional action limiting the availability of the type of visa Yu seeks forecloses the adjudicatory relief he seeks, from any source at this time. In addition [*14] to the considerations discussed above, the court construes Yu's failure to oppose the Motion as consent to dismissal of his Complaint. Civ. L.R. 7.1.f.3.c.
This is precisely what Baylson noted.. USCIS is taking advantage of cases scattered across the nation. Most likely, USCIS is laughing at the judge's ignorance.
I don't think the case sets a bad precedence.(At least Iam not in the same district). The California courts are very immigrant friendly and have many other cases to fall back upon.
Anyways.. I hope WOMers affected with retrogression are still fighting. Victory for retrogression people is the next step in this process.
I don't think the case sets a bad precedence.(At least Iam not in the same district). The California courts are very immigrant friendly and have many other cases to fall back upon.
Anyways.. I hope WOMers affected with retrogression are still fighting. Victory for retrogression people is the next step in this process.