vijay, we are on the same boat. It is unlikely that USCIS/DOS would approve any C/I EB2 tomorrow, despite that there are plenty of unused visa.
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
raju_vijay
Registered Users (C)
Yeah. I am filing lawsuit after tomorrow
Nothing in the INA prohibits issuing employment-based visa number for you even if priority date is not current according to the DOS visa bulletin, as long as the statutory limits for visa numbers has not been exhausted.
You can also question why visa number was not reserved for you when FP results were received, it was definitely before 9/9.
This is my opposition to government's response, worked it out in this sleepless night. Adopted a lot of good information from previous discussions in this thread.
I am finalizing it now, organizing exhibits, etc. Any last-minute suggestions are welcome...
Thanks.
I am finalizing it now, organizing exhibits, etc. Any last-minute suggestions are welcome...
Thanks.
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quoting another court order:
"[T]he current unavailability of a visa number is due to Defendant’s unreasonabledelay in adjudicating Plaintiff’s application. In a similar situation, the Ninth Circuit held that agency delay cannot deprive an immigrant of rights he would have been entitled to had the agency taken an action in a reasonable time. Sun Il Yoo v. Immigration and Naturalization Service, 534F.2d 1325 (9th Cir. 1976). Immigration service may be ordered to consider an application based onthe law in effect at the time the application should have been adjudicated. Id. Further, the Administrative Procedures Act expressly grants federal courts power to issue judgments and decrees against the heads of executive departments to remedy legal wrongs suffered due to agency action. 5 U.S.C. § 702. Defendant has presented no authority for the proposition that Defendant’s own failure to act in a reasonable time period can curtail that power.In this case, Defendant’s unreasonable delay has caused Plaintiff to repeatedly submit fingerprints and file applications for travel and work authorization for the last three years. Until her application is adjudicated, Plaintiff is not entitled to any of the benefits entitled to a lawfulpermanent resident, such as accruing time toward the 5 year waiting period for application to UnitedStates Citizenship. The Court finds no reason why Plaintiff should continue to be burdened and prejudiced because of Defendant’s inaction."
"[T]he current unavailability of a visa number is due to Defendant’s unreasonabledelay in adjudicating Plaintiff’s application. In a similar situation, the Ninth Circuit held that agency delay cannot deprive an immigrant of rights he would have been entitled to had the agency taken an action in a reasonable time. Sun Il Yoo v. Immigration and Naturalization Service, 534F.2d 1325 (9th Cir. 1976). Immigration service may be ordered to consider an application based onthe law in effect at the time the application should have been adjudicated. Id. Further, the Administrative Procedures Act expressly grants federal courts power to issue judgments and decrees against the heads of executive departments to remedy legal wrongs suffered due to agency action. 5 U.S.C. § 702. Defendant has presented no authority for the proposition that Defendant’s own failure to act in a reasonable time period can curtail that power.In this case, Defendant’s unreasonable delay has caused Plaintiff to repeatedly submit fingerprints and file applications for travel and work authorization for the last three years. Until her application is adjudicated, Plaintiff is not entitled to any of the benefits entitled to a lawfulpermanent resident, such as accruing time toward the 5 year waiting period for application to UnitedStates Citizenship. The Court finds no reason why Plaintiff should continue to be burdened and prejudiced because of Defendant’s inaction."
lvla,
Regarding "I. Jurisdiction Exists When The Suit Challenges .." under Arguments, your case is not going through consular processing, right? I guess you are just making the point that even when the consular decisions are generally non-reviewable but failure to act is and so is failure to comply with its own regulations.
Page 8 - "Plaintiffs urge the honorable .." should be "Plaintiff urges the .."
Good luck to you.
Regarding "I. Jurisdiction Exists When The Suit Challenges .." under Arguments, your case is not going through consular processing, right? I guess you are just making the point that even when the consular decisions are generally non-reviewable but failure to act is and so is failure to comply with its own regulations.
Page 8 - "Plaintiffs urge the honorable .." should be "Plaintiff urges the .."
Good luck to you.
If you are asking what are the chances that CIS will adjudicate your AOS the same day you file the action, I would hope high but realistically it may not happen. It would be cutting too close but you can certainly go ahead and give it a shot. At least you would have filed when you PD was current and fight it later that was it not for Defendants' inaction, your PD would not have retrogressed.
General mandamus is fine but it's the TRO that may take you into next visa bulletin when your PD is no more current.
General mandamus is fine but it's the TRO that may take you into next visa bulletin when your PD is no more current.
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USCIS is "supposed to" send you automatic FP renewal notice. However, they sometimes just neglected it. You could request a service request or directly fax the service center to request a FP. But do not put too much efforts into it. I wasted a month trying to get my FP renewed...could have used this time on WOM. Once you filed the lawsuit, FP is not a problem. I heard that sometimes GCs are even issued with a notice saying pending biometrics completion.
I had my code 3 FP done and never had to do them again and received my GC. In case of my wife she did her code 3 but she was asked to go for FP code 1 after we filed WOM. Bottom line, don't spend too much time waiting and trying to get another fingerprinting appointment at the cost waiting longer to file WOM. Once WOM is filed and CIS is ready to act on your application, they will request if needed. On the other hand, if you can get FP appointment before hand, it won't delay your adjudication when you file WOM because it would've already been done.
TiredNJLabourer
Registered Users (C)
Filing WOM tommorow
Hello,
I have been following the thread for the past few weeks. I have drafted the complaint. I am planning to file the wom tommorow. I have been speaking to the clerk and he send me a package to fill up. I have few questions and it would be really great if I could get some help
1) The pro se package sent to me did not have a cover letter. But it has a Designation and case management form. Do I need to add the cover sheet.? (Its available on the website)
2) My wife and I am applying together. And I see only in the complaint where we have to sign. Is there any other form that we might have to sign.
3) I noticed that the TSC center head has two address. One for courier and other for general correspondance. Can I use any one of them. In this forum I saw the courier address but since I will be using USPS I am confused.
4) After filing how soon will the AUSA will get in touch with me? Or do I just wait till 60 days.
5) I keep hearing that we have to file the return of service. I guess the proof of delivery has to be filed. How and when is that done?
6) Any advice on the process would be really awesome.
7) I took infopass but I dont have proof of it. Any way I can get a proof of it? I dont even remember the date.
Brief history of my case is that, I filed my I-485 more than one and a half years ago. I have two approved I 140's. One on EB3 and one on EB2. I requested to use the priority date of EB3 for EB2 filing and my application was accepted. After that USCIS never picked up my case. I have tried via the ombudsmans office (reply helped in finding out that my priority date considred is wrong), Infopass, USCIS customer service calls and finally the local senator. All the came out was a transfer from NSC to TSC. My priority date has been current for 6 months and is still current.
Thanks a lot for the info provided in this thread
Hello,
I have been following the thread for the past few weeks. I have drafted the complaint. I am planning to file the wom tommorow. I have been speaking to the clerk and he send me a package to fill up. I have few questions and it would be really great if I could get some help
1) The pro se package sent to me did not have a cover letter. But it has a Designation and case management form. Do I need to add the cover sheet.? (Its available on the website)
2) My wife and I am applying together. And I see only in the complaint where we have to sign. Is there any other form that we might have to sign.
3) I noticed that the TSC center head has two address. One for courier and other for general correspondance. Can I use any one of them. In this forum I saw the courier address but since I will be using USPS I am confused.
4) After filing how soon will the AUSA will get in touch with me? Or do I just wait till 60 days.
5) I keep hearing that we have to file the return of service. I guess the proof of delivery has to be filed. How and when is that done?
6) Any advice on the process would be really awesome.
7) I took infopass but I dont have proof of it. Any way I can get a proof of it? I dont even remember the date.
Brief history of my case is that, I filed my I-485 more than one and a half years ago. I have two approved I 140's. One on EB3 and one on EB2. I requested to use the priority date of EB3 for EB2 filing and my application was accepted. After that USCIS never picked up my case. I have tried via the ombudsmans office (reply helped in finding out that my priority date considred is wrong), Infopass, USCIS customer service calls and finally the local senator. All the came out was a transfer from NSC to TSC. My priority date has been current for 6 months and is still current.
Thanks a lot for the info provided in this thread
gctarget06
Registered Users (C)
Question about Serving AUSA...
Guys,
I need to clarify something with you guys...
I personally served AUSA and didn't know or wasn't sure if I could have something for them to sign that they have received the complaint. If I had done this through USPS then I'd have the return receipt of USPS signed by them which I could use to proove to the court. But since I did it personally, how do I proove to the court that I did serve the US Attorney office ?? Any clue ?
Should I send it via USPS to them one more time to have a receipt signed by them ?
Thanks !
Guys,
I need to clarify something with you guys...
I personally served AUSA and didn't know or wasn't sure if I could have something for them to sign that they have received the complaint. If I had done this through USPS then I'd have the return receipt of USPS signed by them which I could use to proove to the court. But since I did it personally, how do I proove to the court that I did serve the US Attorney office ?? Any clue ?
Should I send it via USPS to them one more time to have a receipt signed by them ?
Thanks !
Let the civil process clerk (or whoever accepted the package) sign and stamp the second page of summons form for your district attorney. That's how it's usually done. Go back and ask for that to be done. You can also ask for a receipt.
1) The pro se package sent to me did not have a cover letter. But it has a Designation and case management form. Do I need to add the cover sheet.? (Its available on the website)
You do need civil cover sheet
2) My wife and I am applying together. And I see only in the complaint where we have to sign. Is there any other form that we might have to sign.
Sign the coversheet also.
3) I noticed that the TSC center head has two address. One for courier and other for general correspondance. Can I use any one of them. In this forum I saw the courier address but since I will be using USPS I am confused.
Use courier address as somebody has to sign for the package when you request return receipt. Do not forget, use certified mail + return receipt requested.
4) After filing how soon will the AUSA will get in touch with me? Or do I just wait till 60 days.
Just wait for AUSA to move.
5) I keep hearing that we have to file the return of service. I guess the proof of delivery has to be filed. How and when is that done?
After you get all return receipts, fill the second pages of summons for all defendants and attach copies of return receipts.
6) Any advice on the process would be really awesome.
Do not take it close to the heart. Relax and do not put high hopes into the lawsuit.
7) I took infopass but I dont have proof of it. Any way I can get a proof of it? I dont even remember the date.
You do not need a proof for this, you can just mention that you went for infopass in such and such month.
gctarget06
Registered Users (C)
Thanks lazycis...In my case he (someone from AUSA office) even kept the summons...it was just a copy of the original summons that I had. He asked me if there is anything that I have which he could sign. I wasn't sure about that so I said NO. Beside I just spoke to Court Clerk and she told me that I can't even serve the Autorney if I am one of the Plaintiff...I guess I should serve the Clerk's office through USPS once again...atleast that way I'll have a proof and also I made sure that I followed the court's rule/requirement.....
What do you say lazycis ? any other comment/thoughts ??
the clerk is right that you cannot serve it yourself according to the rules. However, it is often ignored. If you can ask a friend of yours, perfect, if not, either go back to AUSA office with another copy of summons and ask the person to sign or serve a new copy of complaint+summons either in person or via certified mail. Serving in person will speed up the process a bit (you save 3-5 days).
TiredNJLabourer
Registered Users (C)
I dont see any place to sign. I only see places where the attorney has to sign. Do I put myself as the attorney?
2) My wife and I am applying together. And I see only in the complaint where we have to sign. Is there any other form that we might have to sign.
Sign the coversheet also.
2) My wife and I am applying together. And I see only in the complaint where we have to sign. Is there any other form that we might have to sign.
Sign the coversheet also.
Yes, sign instead of attorney (you are your own).