Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)

[duck008]

Priority Date

In the I140 approval notice, there is a priority date. Isn't this the priority date we are talking about?

This is what's from the MSJ from my AUSA:

The visa numbers are allocated to individuals based upon each individual‟s “priority date,” which in employment-based immigration cases is usually established by the date that a labor certification application was initially accepted for processing. Id. ¶ 6; see also State Department‟s Glossary of Visa Terms, attached as Appendix A, at 10, and available at:..."

and here is what's in the Appendix referred above:

Priority Date: The priority date decides a person's turn to apply for an immigrant visa. In family
immigration the priority date is the date when the petition was filed at a Department of Homeland Security
(DHS), U.S. Citizenship and Immigration Services office or submitted to an Embassy or Consulate
abroad. In employment immigration the priority date may be the date the labor certification application
was received by the Department of Labor (DOL).

I'm really confused by the tone "may be"!

 

[gcca_2004]

So AUSA agrees with USCIS.

This is what's from the MSJ from my AUSA:

The visa numbers are allocated to individuals based upon each individual‟s “priority date,” which in employment-based immigration cases is usually established by the date that a labor certification application was initially accepted for processing. Id. ¶ 6; see also State Department‟s Glossary of Visa Terms, attached as Appendix A, at 10, and available at:..."

 

[duck008]

Response to MSJ and Cross-Motion - when to file

I'm debating whether I should file my response and cross-motion now. As you may know that I'm travelling ove seas soon and have already drafted a motion for stay with the AUSA so that I just need to file my response in late February instead of January. I'm now very close to get the response draft done. So should I file it now or wait longer? If the motion for stay is filed, should it change the equation at all?

 

[duck008]

Visa number and retrogression

How do we argue with this?:

See 8 C.F.R. § 245.2(a)(5)(ii) (“An application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State, ......

The question is when should a visa number be allocated to an applicant. There doesn't seem exist a rule that defines when a visa number should be allocated to an applicant and thus the defendants argument lacks sound logic. And logically, it is unfair to withhold visa number allocation to an applicant who has been stuck in name check for a long time when he/she is affected by a visa number retrogression. And that is on top of the unfairness to an applicant whose application has already been delayed due to long pending name check!

 

[wom_ri]

The fundamental question is why are some applicants in this quagmire. In a perfect world(and it is the case for most applicants) everyone files I-485 and is processed quickly and waiting for visa numbers. And it is easy to allocate numbers based on priority dates. However, USCIS never realized the consequences of their unreasonable delay of applicants stuck in namecheck. The FBI does not care about expediting these namechecks. USCIS indeed is aware of the fact that their namechecks are flagged as "Routine Request with No specific deadline" by FBI NNCP staff. They have other (national security initiatives, which has better funding) by which to identify security threats. It was the duty of USCIS to effectively monitor the namechecks of applicants who have paid the mandatory fee and expedite them(if required) on a rational manner. Lacking this, now they find themselves requesting visa numbers in violation of 1153(e).

The question is when should a visa number be allocated to an applicant. There doesn't seem exist a rule that defines when a visa number should be allocated to an applicant and thus the defendants argument lacks sound logic. And logically, it is unfair to allocate a visa number to an applicant who has been stuck in name check for a long time when he/she is affected by a visa number retrogression. And that is on top of the unfairness to an applicant whose application has already been delayed due to long pending name check!

 

[lazycis]

The fundamental question is why are some applicants in this quagmire. In a perfect world(and it is the case for most applicants) everyone files I-485 and is processed quickly and waiting for visa numbers. And it is easy to allocate numbers based on priority dates. However, USCIS never realized the consequences of their unreasonable delay of applicants stuck in namecheck. The FBI does not care about expediting these namechecks. USCIS indeed is aware of the fact that their namechecks are flagged as "Routine Request with No specific deadline" by FBI NNCP staff. They have other (national security initiatives, which has better funding) by which to identify security threats. It was the duty of USCIS to effectively monitor the namechecks of applicants who have paid the mandatory fee and expedite them(if required) on a rational manner. Lacking this, now they find themselves requesting visa numbers in violation of 1153(e).

Exactly. Affirmative misconduct is not acceptable, even if the USCIS had a good intention. The USCIS should have ask Congress to change legislation if it wanted to change background check process. Here are the main points:

1. The scope of NC is much broader then Congress intended it to be. NC is not criminal background check.
2. The agency did not implement ANY regulations regarding new NC process.
3. The change was not open to public discussion in violation of APA
4. The USCIS/FBI put new process in place without asking for appropriate funding from Congress
5. Congress never intended for any application to be pending more than a year (visa numbers are wasted if it happens). The USCIS failed Congressional mandate to eliminate backlog ( see 8 usc 1151-1153).
6. The USCIS engaged in practice of delaying applications even more using the judicial system. They removed lawsuit from expedite reasons, stopped scheduling NATZ interviews until NC is done to prevent people from filing 1447b suits.
7. All this led to the violation of 1153(e) as the agency is trying to hide the problem, which is a pattern of deliberate lie. One example is that applications stuck NC were removed from the backlog definition and are not reported as backlogged on quaterly backlog reports that the USCIS provides to Congress.

 

[MrTea]

Isn’t 7 years long enough ?

Did N-400 in 2000. Went for the first interview in 2001. Didn’t hear anything from them, so I called USCIS and they wanted me to do the second interview. And I did that in 2003. Nothing has happened so far! I am thinking about 1447(b). Is it wise to do it by myself or have an attorney with experience with 1447(b). Anybody in Illinois done that?

Thanks

 

[mohman]

Hi all,
I just got email from the USCIS people saying that basically my thing has been delayed foir back ground check reasons and call them back in 6 months if its not resolved. But the bigger issue for me right now is that, the email also informed me that if I've moved that I need to inform the Homeland Security with form AR-11.
The problem is that I moved from PA to California for work, my parents are still in PA and I'm sure whether or not to put my permanent address as PA or CA. If I put CA then the jurisdiction might get moved, and I dont see CA as my permanent address as I could easily end up moving out of here. I just dont want to get in trouble. Also on the AR-11 form there is a box for work address, so I intend to put CA in the work address.
Would appreciate any informed opinions.

 

[lazycis]

Did N-400 in 2000. Went for the first interview in 2001. Didn’t hear anything from them, so I called USCIS and they wanted me to do the second interview. And I did that in 2003. Nothing has happened so far! I am thinking about 1447(b). Is it wise to do it by myself or have an attorney with experience with 1447(b). Anybody in Illinois done that?

Thanks

Do it yourself. Expect to get an oath letter withing a months or two after filing 1447b. Prepare it on weekend and file on Monday.

 

[wom_ri]

statutory duty to use available EB visa numbers

Lazycis,others:
In Galvez v Howerton.. the Judge noticed that there is a statutory duty to fulfill yearly quotas(seems like Family based immigration I-130). The footnote referes to 8 USC 1101 et seq. (In support of this proposition, Plaintiff has submitted two exhibits which are copies of INS intradepartment memos)

What is the Judge talking about here ?
Is there any such statutory duty to fill yearly Employment based quotas ?

The judge also cites Contraras v Bell 78-C-1166(N.D.Ill 1979). This case talks about redistribution of unused visas.. any help here for retrogression fellows ?

 

[yiliuer]

Lazicis, AGC4ME and others,

I recently received the AUSA's opposition to my MSJ. Can I file an opposition or a reply to her opposition? If yes, will there be a deadline for filing such document? Thanks very much for your help.

 

[lazycis]

Lazicis, AGC4ME and others,

I recently received the AUSA's opposition to my MSJ. Can I file an opposition or a reply to her opposition? If yes, will there be a deadline for filing such document? Thanks very much for your help.

No, you cannot. Technically you can, but it won't count.

 

[lazycis]

I saw a Pro se case in my district court, the plaintiff file Pro se for a 3-year NC waiting (NIW case). At around 30-day of serving, the AUSA asked him to dismiss the case becuase the application was approved. Does it sound too optimistic?

It depend on timing and district. Before 2007, the USCIS had a policy to expedite NC once WOM is filed.

 

[lazycis]

Hi Gurus, I am ready to file WOM in a few days for delayed I-485. Here is the my details, do you think it is worth filing WOM or wait another 6 months?

1. Eb1B based I-485. Filed on July 24, 06. Priority date: Oct 05. I-485 transferred to TSC in Mar 07.
2. Visa # is always Current, except Aug and Sep 07 visa fiasco.
3. 5 Infopasses
4. Wrote to Senator, FL
5. Emailed FBI twice, no response
6. Done FOIPA, "no record"
7. Per Infopass and senator, NC is pending

Is is worthing filing now for 18-month waiting, or should I wait until 2-year mark??????

What district?

 

[lazycis]

Westen PA.

The 3-year NC delay case was filed in the same district in Oct 07 and dissmissed around 30-day later.

So, lazy...., do I have a case?

It's up to you. Not many cases with less than 2 year wait, I know 1 such case from Texas (Duan).

 

[rp1234]

Exactly. Affirmative misconduct is not acceptable, even if the USCIS had a good intention. The USCIS should have ask Congress to change legislation if it wanted to change background check process. Here are the main points:

1. The scope of NC is much broader then Congress intended it to be. NC is not criminal background check.
2. The agency did not implement ANY regulations regarding new NC process.
3. The change was not open to public discussion in violation of APA
4. The USCIS/FBI put new process in place without asking for appropriate funding from Congress
5. Congress never intended for any application to be pending more than a year (visa numbers are wasted if it happens). The USCIS failed Congressional mandate to eliminate backlog ( see 8 usc 1151-1153).
6. The USCIS engaged in practice of delaying applications even more using the judicial system. They removed lawsuit from expedite reasons, stopped scheduling NATZ interviews until NC is done to prevent people from filing 1447b suits.
7. All this led to the violation of 1153(e) as the agency is trying to hide the problem, which is a pattern of deliberate lie. One example is that applications stuck NC were removed from the backlog definition and are not reported as backlogged on quaterly backlog reports that the USCIS provides to Congress.

Lazycis, This is interesting. So what authority is the USCIS conducting FBI name checks on. In general when this is disagreement with a agencies practise courts have looked at the congressional intent if it is clear and explicit. If not, an agency can create policy based on its interpretation and it will be harder to challenge ot in court. Has the USCIS or FBI conceded in any lawsuit as to why they do the namecheck. Is to address some statute in the homeland security act passed in 01/02? The USCIS and FBI can argue that only the method of checks have changed and not the underlying or driving statute that requires them to vet folks before granting them green cards. In order to show violation I think you will have to show that congress did not intent for them to do name checks or take so long to do name checks. Just the fact that they are doing name checks is violating 1153(e) may not hold strong.

 

[imhrb]

How long before the expiration of EAD and AP can you apply for renewal? I heard you can apply 6 months before the expiration of EAD for renewal. Is this true? Also, is it the same for AP or different?

 

[lazycis]

How long before the expiration of EAD and AP can you apply for renewal? I heard you can apply 6 months before the expiration of EAD for renewal. Is this true? Also, is it the same for AP or different?

Yes, 6 months for both (not 100% sure about AP). They way the USCIS is working, it's better not to depend on their "quickness".

 

[patricia_432]

Lazycis, and others,

Replied to AUSA's MTD, I filed my opposition. Now AUSA filed "Support of their motion to dismiss plaintiff's complaint". In this support, he cited 3 cases which ordered on Nov/Dec 2007 in my district. These 3 cases all granted the MTD for lack of subject matter jurisdiction and failure to state a claim. My PD is current. So no visa argument. But these recent granted cases did make me (and others) in a very bad situation. I'll have a hearing next week. I don't know what to argue in the court. Laws are not our strength. I'm thinking hiring an attorney to attend the hearing. Is it doable in this short time?
Thanks.

 

[lazycis]

Lazycis, and others,

Replied to AUSA's MTD, I filed my opposition. Now AUSA filed "Support of their motion to dismiss plaintiff's complaint". In this support, he cited 3 cases which ordered on Nov/Dec 2007 in my district. These 3 cases all granted the MTD for lack of subject matter jurisdiction and failure to state a claim. My PD is current. So no visa argument. But these recent granted cases did make me (and others) in a very bad situation. I'll have a hearing next week. I don't know what to argue in the court. Laws are not our strength. I'm thinking hiring an attorney to attend the hearing. Is it doable in this short time?
Thanks.

It's doable and I recommend to do that if you are not comfortable representing yourself at the hearing (I am not sure if I'd be comfortable).