Hey, lazycis and other members,
The defendants argued that my priority date was current for "a brief window", which is 6 months. The following are the rebuttal that I prepared. Any comments or suggesions are welcome!
Defendants claimed that Plaintiffs’ visa priority date retrogressed on December 2007, “after a brief window in which all visa priority dates were declared current”. However, the fact is that the plaintiffs’ visa priority date was current from June 2007 to November 2007, which cannot be considered as a brief window within the context. The defendants concede that USCIS has a mandatory duty to utilize 140,000 visas plus any family based visas which have been unused in the previous fiscal year on Employment based (EB) visa applicants annually. Therefore, at least 70,000 employment-based I485 cases have been or should have been adjudicated during this so-called “brief window”. Additionally, the facts here are two-fold: The priority date for EB2 preference category for Chinese nationals have undergone serious retrogression twice within last 3 years; while thousands of EB visa number have been wasted because USCIS don’t process enough pending applications in a timely manner. “In FY 06, over 10,000 employment-based visas were lost, even though USCIS had an estimated 100,000 to 150,000 pending applications for employment-based green cards.” (see Ombudsman report for 2007 at page 33-34). The slow and random movement of the visa priority date, and the subsequent generation of this so-called “brief window” are in clear violation of congressional intent because USCIS has a mandatory duty to utilize visa numbers to the fullest extent possible. See Galvez v. Howerton, 503 F. Supp. 35, 38-39 (C.D. Cal. 1980).
In addition, "8 U.S.C. § 1152(a)(3) specifies that the 7% per-country limit can be exceeded when visa numbers are available. Congress certainly intended that USCIS use visa numbers to the fullest extent possible and made sure that additional provisions are provided to this effect". (quoting wom_ri
) Therefore Defendants statement that visas were available for only brief period is incorrect. Notwithstanding DOS cut-over dates for employment categories, the USCIS can ignore per-country limitations if visas are available. As we stated earlier, visas were lost in FY 2006 and one of those visas could've been used to adjudicate Plaintiff's applications if it was not unreasonably delayed by the Defendants.
Finally, the federal courts have the authority under the APA (see 5 U.S.C. §§ 702, 706) to set aside agency action that is not in accordance with the law and to order federal agencies involved to remedy harm which was inflicted upon Plaintiff by Defendants actions or inactions. If this Honorable court finds that the Defendants unreasonably delayed action on Plaintiff's adjustment of status applications and that a vsa number became unavailable to Plaintiff as a result, the court has authority under 5 U.S.C. § 702 to order the government agencies involved to issue a visa number necessary to adjudicate Plaintiff's application and to make a decision on Plaintiff's application within a reasonable time as required by 5 U.S.C. § 555(b).
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