You can do both. Order doesn't matter. ofcourse opp to MTD has to be filed within the deadline. I say go for the jugular and file MSJ. There is a difference between opp. to MTD and MSJ. In MSJ you have to prove that there is no dispute of facts where as in Opp. to MTD you have to prove that the US Attorney's stance is not correct and that the court has jurisdiction over your case. The arguments will be more or less the same in both instances. It's the way you present it....
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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You can do both. Order doesn't matter. ofcourse opp to MTD has to be filed within the deadline. I say go for the jugular and file MSJ. There is a difference between opp. to MTD and MSJ. In MSJ you have to prove that there is no dispute of facts where as in Opp. to MTD you have to prove that the US Attorney's stance is not correct and that the court has jurisdiction over your case. The arguments will be more or less the same in both instances. It's the way you present it....
I hope u have read this(visa number argument):
http://boards.immigration.com/showpost.php?p=1872668&postcount=15930
http://boards.immigration.com/showpost.php?p=1872668&postcount=15930
thanks, wom_ri
I wasn't being clear. The problem for me is that my priority date is not current and there are still visa numbers in EB2 catergory. But either way, thank you for finding that favorable case and I think it is going to be a valid point in the argument.
I wasn't being clear. The problem for me is that my priority date is not current and there are still visa numbers in EB2 catergory. But either way, thank you for finding that favorable case and I think it is going to be a valid point in the argument.
I filed application for preliminary injunction and temporary restraining order(TRO) on March 21(requiring that DOS hold 2 visa numbers for me from April visa bulletin). I got GC on April 1!
I would suggest that you draft a similar TRO & preliminary injunction and
see how USCIS and/or DOS responds.
if EB2 numbers becomes unavailable.. it is a more difficult battle to get one before Oct1, 2008.
My draft for TRO is available in a previous page.
Hope this helps.
I would suggest that you draft a similar TRO & preliminary injunction and
see how USCIS and/or DOS responds.
if EB2 numbers becomes unavailable.. it is a more difficult battle to get one before Oct1, 2008.
My draft for TRO is available in a previous page.
Hope this helps.
wom_ri
My case is a little different from yours. Your priority date is earlier than the cutoff date this April. But my priority date (Sept. 2005) is later than the cutoff date (12/2003) for EB2 for Chinese. Do you think I will have a chance to get visa number with preliminary injunction and TRO?
Is there a sequnce that I should follow for filing it? Like I have to file it before they file an answer or before I file a MSJ?
Here is a bit of the background of the court and the judge. I think the court is pretty friendly to the immigrants as I know in several cases the court found jurisdiction. But I called some plaintiffs in the previous cases handled by this judge. He doesn't seem to be so friendly to immigrants. He didn't say that the court has no jurisdiction over the matter. But he grants extensions to AUSA as long as they ask for an extension.
My case is a little different from yours. Your priority date is earlier than the cutoff date this April. But my priority date (Sept. 2005) is later than the cutoff date (12/2003) for EB2 for Chinese. Do you think I will have a chance to get visa number with preliminary injunction and TRO?
Is there a sequnce that I should follow for filing it? Like I have to file it before they file an answer or before I file a MSJ?
Here is a bit of the background of the court and the judge. I think the court is pretty friendly to the immigrants as I know in several cases the court found jurisdiction. But I called some plaintiffs in the previous cases handled by this judge. He doesn't seem to be so friendly to immigrants. He didn't say that the court has no jurisdiction over the matter. But he grants extensions to AUSA as long as they ask for an extension.
My argument for TRO will be:
1. Establish basis for estoppel in your complaint based on affirmative misconduct(violation of 1153(e)) for order of consideration and also misconduct on not expediting your namecheck when your complaint was filed
and now namecheck is not required.. This is a very strong argument. Their grounds for delaying your adjudication is very flimsy now.
2. Add some injury like insecure job market,financial considerations of a better job opportunity and add job postings that require a GC(in your field or related field).
Also add that you r unable to petition for your relatives to become GC holders...and unable to accrue time for naturalization.
3. TRO is warranted bcos you fear visa numbers will be unavailable for rest of fiscal year 2008.
4. My TRO was based on visa numbers running out after April 2008. Your TRO will be based on EB category visa numbers becoming totally unavailable in the near future(like Unavailable in July 2007) and no certainty on when it will be available in the future.
5. Add alibeik complaint indicating that you r not responsible for lack of visa numbers.
An application for preliminary injunction & TRO is an additional knife in your fight against USCIS. You file it with the court under the existing complaint.
The defendants have 10 days to respond. If court does not grant your TRO you can appeal the decision. Also, Govt has to answer your existing complaint which still continues, irrespective of the TRO.
I think you can expedite the court proceedings on your case with the TRO.
IMO, It does not hurt to try & hope for the best.
& dont worry about judge inclination.. Each case is different and may merit a different stance by the judge.
1. Establish basis for estoppel in your complaint based on affirmative misconduct(violation of 1153(e)) for order of consideration and also misconduct on not expediting your namecheck when your complaint was filed
and now namecheck is not required.. This is a very strong argument. Their grounds for delaying your adjudication is very flimsy now.
2. Add some injury like insecure job market,financial considerations of a better job opportunity and add job postings that require a GC(in your field or related field).
Also add that you r unable to petition for your relatives to become GC holders...and unable to accrue time for naturalization.
3. TRO is warranted bcos you fear visa numbers will be unavailable for rest of fiscal year 2008.
4. My TRO was based on visa numbers running out after April 2008. Your TRO will be based on EB category visa numbers becoming totally unavailable in the near future(like Unavailable in July 2007) and no certainty on when it will be available in the future.
5. Add alibeik complaint indicating that you r not responsible for lack of visa numbers.
An application for preliminary injunction & TRO is an additional knife in your fight against USCIS. You file it with the court under the existing complaint.
The defendants have 10 days to respond. If court does not grant your TRO you can appeal the decision. Also, Govt has to answer your existing complaint which still continues, irrespective of the TRO.
I think you can expedite the court proceedings on your case with the TRO.
IMO, It does not hurt to try & hope for the best.
& dont worry about judge inclination.. Each case is different and may merit a different stance by the judge.
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lazycis and other gurus,
I filed my WOM case last week, I mailed out the summons to all the defendants+ USA* via certified mail. Now USPS tracking shows they all have received it. When I file the certificate of Service, can I just list each of the defendants and the date they received the summon or do I have to use the second page of the summon for each defendant?
Many thanks!
I filed my WOM case last week, I mailed out the summons to all the defendants+ USA* via certified mail. Now USPS tracking shows they all have received it. When I file the certificate of Service, can I just list each of the defendants and the date they received the summon or do I have to use the second page of the summon for each defendant?
Many thanks!
waitinfori130
Registered Users (C)
I'm not very informed in this matter. How would this affect a person such as myself. I recently filed WOM for my delayed I-130. Do I have to be concerned with the issues concerning the available/unavailable visa numbers?
Thanks, wom_ri
Wom_ri,
Thank you for your suggestions. I think it is worth trying. It seems that My case will not be dismissed even if the TRO is denied by the court.
I have one question about the TRO though. I've read the TRO that you drafted and want to know what the following means?
"A substantial likelihood of success on the merits".
I am especially confused about the "merits" part.
Wom_ri,
Thank you for your suggestions. I think it is worth trying. It seems that My case will not be dismissed even if the TRO is denied by the court.
I have one question about the TRO though. I've read the TRO that you drafted and want to know what the following means?
"A substantial likelihood of success on the merits".
I am especially confused about the "merits" part.
You do not have to use the second page of summons (although it's the proper way of doing it). You can file a proof of service, state that all defendants and AUSA have been server and attach delivery confirmation printouts from the USPS site. That should be enough. However some clerks may require you to provide return receipts.
It means that there is little doubt that the USCIS unlawfully delayed adjudication of your application.
waitinfori130
Registered Users (C)
Could one of you fine people consider my question? I would appreciate it. It maybe a not so smart question, but I was told once the only dumb question is the question not asked
Could one of you fine people consider my question? I would appreciate it. It maybe a not so smart question, but I was told once the only dumb question is the question not asked
Fortunately for spouses of US Citizens there is no problem with visa availability.
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Can any one help me with the mailing address for Michael MUKASEY, US Attorney General, Michael CHERTOFF, DHS Secretary, Emilio T. GONZALEZ, Director of USCIS, and Robert S. MUELLER, Director of FBI, I will be serving them, but I want to get the right addresses for them. I filed my case on April 08 in Los Angles.
Thank you in advance
Thank you in advance
waitinfori130
Registered Users (C)
Michael Chertoff , Director Department of Homeland Security
Office of the General Counsel
U. S. Department of Homeland Security
Washington, D.C. 20528
Emilio T. Gonzalez, USCIS Director
Office Of the General Counsel
U. S. Citizenship and Immigration Services
Washington, DC 20528
Michael B. Mukasey, U. S. Attorney General
U.S. Department of Justice
950 Pennsylvania Ave, NW
Washington, DC 20530
Robert S. Mueller III, Director of Federal Bureau of Investigation
J. Edgar Hoover Building
935 Pennsylvania Avenue, NW
Washington, D.C. 20535-0001
Iam not surprised. Memo is only a memo.. not a regulation or a statute. USCIS is not bound to follow it at all times.
Tell the forum guys.. to file a WOM.. I did that.. and hopefully people suffering from this wrongdoing will seek justice in courts.. Unfortunately.. that is the only way USCIS will admint that it has to do it's job in a reasonable manner.
Until I got my GC via court... I did not think about legal recourse ever.. but now I know why the court-system does work and has the confidence of the people of this county.
Tell the forum guys.. to file a WOM.. I did that.. and hopefully people suffering from this wrongdoing will seek justice in courts.. Unfortunately.. that is the only way USCIS will admint that it has to do it's job in a reasonable manner.
Until I got my GC via court... I did not think about legal recourse ever.. but now I know why the court-system does work and has the confidence of the people of this county.
AILF practice advisory - name check memo
In the light of USCIS Name Check memo issued on 02/04/2008, AILF has updated their practice advisory regarding responding to MTD in mandamus cases.
http://www.aila.org/content/default.aspx?docid=23415
In the light of USCIS Name Check memo issued on 02/04/2008, AILF has updated their practice advisory regarding responding to MTD in mandamus cases.
http://www.aila.org/content/default.aspx?docid=23415
Hi, Lazycis and others,
I received fingerprints re-taken notice today from NSC. Is it a good sign for my N-400?
Basic information:
N-400 Filing on 03/23/2006
Passed interview on 07/10/2006
waiting for the oath letter because of the name check...
Lawsuit(Pro Se) Filed on 01/02/2008
AUSA asked 2 weeks extension to answer on 03/04/2008
AUSA second motion for extension of time to answer on 03/13/2008
AUSA filed ANSWER to Complaint on 04/01/2008
ORDER from judge prepare proposed discovery plan and scheduling order by April 25,2008
File Motion for Summary Judgement on 04/09/2008
Received fingerprints re-taken notice on 04/10/2008
Civil No. 08-0003-CV-W-FJG
THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
I received fingerprints re-taken notice today from NSC. Is it a good sign for my N-400?
Basic information:
N-400 Filing on 03/23/2006
Passed interview on 07/10/2006
waiting for the oath letter because of the name check...
Lawsuit(Pro Se) Filed on 01/02/2008
AUSA asked 2 weeks extension to answer on 03/04/2008
AUSA second motion for extension of time to answer on 03/13/2008
AUSA filed ANSWER to Complaint on 04/01/2008
ORDER from judge prepare proposed discovery plan and scheduling order by April 25,2008
File Motion for Summary Judgement on 04/09/2008
Received fingerprints re-taken notice on 04/10/2008
Civil No. 08-0003-CV-W-FJG
THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
If your first fingerprinting was done back in 2006 and you haven't got any more since 2006 then you will get your OL right after your second FP. Congrat!