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

Congressional member inquiry would let you know exactly when did FBI receive the request and did they finish it yet or not? It would give you a piece of mind and then you can use that info later in your WOM. Bear in mind WOM requires lots of efforts cuz we need to show court that all the available venues were used before knocking at its door finally. Could you believe I have a record of more than 250 calls/emails/letters/faxes I made during my N-400 process and finally got my interview letter and got the namecheck done. It's a long way to go for some of us so be patience and you would get the success finally.

soccergirl said:
The USCIS said it was stuck in Namecheck but it's hard to know who to believe. I will write my congressperson and see what they can do. Thank you so much for you advice.
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Wommei,
Seems to me that you would like to prove to the Judge that USCIS has to give a GC to you NOW(not when visa numbers get available to you in due course). USCIS in your case will claim that they cannot adjudicate bcos statutes prevent it from doing so.
You have to put forth arguments as to why that is not true.
1. Without estoppel, you need to rely on existing statutes(1255) that states that visa numbers only be available at time of filing.
Some Cal courts have blamed USCIS for the delay(alibeik) and sided with plaintiffs like you.
But I doubt other courts in this country will lean so heavily towards immigrants.
NOW COMES ESTOPPEL..it reinforces the power of courts to grant relief to avoid injustice in select cases.. The general estoppel doctrine is very general and like lazycis pointed out can be meant to apply to cases like yours too(Of course, no court had opined on this exact situation before). But I do not see why estoppel claims can be ignored cases like yours.. Esp.. becos namecheck is no longer required by USCIS now. I used estoppel to argue both for unavailability of visa numbers as well as backdated GC claims.. but you could and should use it for your case too.

wommei said:
Lazycis and other womers,

I know what "estoppel" means. BUt now I am a bit confused about the purpose of estoppel claims. If I only want to argue that my I485 case should be adjudicated now by USCIS because a visa number was available when it is filed with USCIS/federal court, do I need to use estoppel argument? Or maybe estoppel claims are only for those people who want to back-date their green cards? Thanks.
Additionally, there have been 2 cases that the court ordered to adjudicate AOS cases despite the visa numbers are not available right now in Northern Cal. Dist. court. Did plaintiffs have the argument of estoppel in their MSJ or complaints?
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Just curious guys - how many people are on this board that are still pending namechecks for over 1 year ? Sucks to see this as a lingering problem...
 
wommei said:
Lazycis and other womers,

I know what "estoppel" means. BUt now I am a bit confused about the purpose of estoppel claims. If I only want to argue that my I485 case should be adjudicated now by USCIS because a visa number was available when it is filed with USCIS/federal court, do I need to use estoppel argument? Or maybe estoppel claims are only for those people who want to back-date their green cards? Thanks.
Additionally, there have been 2 cases that the court ordered to adjudicate AOS cases despite the visa numbers are not available right now in Northern Cal. Dist. court. Did plaintiffs have the argument of estoppel in their MSJ or complaints?
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AFAIK, Plaintiff's did not use estoppel claims in those cases. The story is two-fold, as wom_ri noted (or three-fold?).

8 usc 1255 could be interpreted this way: a visa number need to be available when I-485 is filed and should be allocated when I-485 is accepted by the USCIS. When I-485 is approved, visa number is subtracted from the pool of numbers for the fiscal year when I-485 was originally filed ("which the alien is chargeable for the fiscal year then current" 8 usc 1255(b)).
This argument can be useful even for filing WOM when your PD is not current.

We can also argue that current regulations regarding priority date, based on LC filing date, not on I-140 filing date are invalid.

Last, but not least, we can argue that nothing explicitly prohibits issuing visa number even if PD is not current according to visa bulletin (many examples when USCIS did that and indeed, the INA says nothing about visa bulletin).
Visa bulletin is being used to estimate visa availability.

If court does not accept this interpretation, we can argue that the government should be prohibited (estopped) from denying visa availability as we lost eligibility for visa number because the government violated federal laws.

Finally, AC21 recaptured unused visa numbers and about 100,000 where unused (and I believe, are still available) after FY 2003. See http://travel.state.gov/pdf/FY2003 AppD.pdf
So you can argue that visa numbers are, in fact, available.
 
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Rahul Kumar said:
Just curious guys - how many people are on this board that are still pending namechecks for over 1 year ? Sucks to see this as a lingering problem...
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I myself know 7 board members who are still waiting and I also know two families still waiting for 3+ years (believe me, I pushed them, but they do not want to file WOM and become board members :)).
 
Rahul Kumar said:
Just curious guys - how many people are on this board that are still pending namechecks for over 1 year ? Sucks to see this as a lingering problem...
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That will include me. PD Jan 2007. I fully intend to file my WOM by June. That memo was just a publicity stunt. I wait until november only to find out I had waited for nothing. Remember it is only a PROJECTED timeline and not a law. Besides, why do I have to wait until November when tons of people who came after me are already citizens.

By the end of May I intend to start a thread as a guage of their promise.
 
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some more questions

Thanks, lazycis! Now I have a better understanding about it. But I do have some more questions, as follows:

lazycis said:
AFAIK, Plaintiff's did not use estoppel claims in those cases. The story is two-fold, as wom_ri noted (or three-fold?).

8 usc 1255 could be interpreted this way: a visa number need to be available when I-485 is filed and should be allocated when I-485 is accepted by the USCIS. When I-485 is approved, visa number is subtracted from the pool of numbers for the fiscal year when I-485 was originally filed ("which the alien is chargeable for the fiscal year then current" 8 usc 1255(b)).
This argument can be useful even for filing WOM when your PD is not current.

According to 8 USC 1153 (g)- if a person fails to apply for immigrant visa within a year after s/he is notified that a visa number is available, s/he is no longer eligible for a visa. However, if a person shows that the failure happened because of the circumstances beyond alien control, a visa number can be reinstated within 2 year periord.

I filed I485 on September 2005 and a visa number was available then. But according this "2 year period" rule, I can not claim that visa number after September 2007, is that right?


We can also argue that current regulations regarding priority date, based on LC filing date, not on I-140 filing date are invalid.

This one doesn't apply to me since I am in NIW and later EB1A (pending).

Last, but not least, we can argue that nothing explicitly prohibits issuing visa number even if PD is not current according to visa bulletin (many examples when USCIS did that and indeed, the INA says nothing about visa bulletin).
Visa bulletin is being used to estimate visa availability.

I heard that some IO don't follow the visa bulletin and issue green card even the PD is not current. Do you have some specific examples that we could use as evidence ( I think there is some rule about "hearsay", just learned that from LAW and ORDER)? like case number or a person with a specific name?

If court does not accept this interpretation, we can argue that the government should be prohibited (estopped) from denying visa availability as we lost eligibility for visa number because the government violated federal laws.

In the favorable case 1 page before, it state" The visa # ran out as of July 2nd, 2007.Heinauer Decl. P8. The responsibility for the lack of visa #, is not attributable to plaintiff. In this case, defendants are entirely responsible for the delay in processing plaintiff's application."
Does this mean that the court grant estoppel although the plaintiff didn't claim for it?

Finally, AC21 recaptured unused visa numbers and about 100,000 where unused (and I believe, are still available) after FY 2003. See http://travel.state.gov/pdf/FY2003 AppD.pdf
So you can argue that visa numbers are, in fact, available.
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Lazycis, I'm in China now with my wife. I just checked my case online at USCIS.Gov....

2weeks after filing....

APPROVED !!!, it is 3:30am here and me and my wife are very happy and celebrating. Lazycis, and this forum gave me a lot of support and confidence to do this.... Thankyou.
 
waitinfori130 said:
Lazycis, I'm in China now with my wife. I just checked my case online at USCIS.Gov....

2weeks after filing....

APPROVED !!!, it is 3:30am here and me and my wife are very happy and celebrating. Lazycis, and this forum gave me a lot of support and confidence to do this.... Thankyou.
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The power of WOM

Just one more reason why those who are still waiting need to sue
 
waitinfori130 said:
Lazycis, I'm in China now with my wife. I just checked my case online at USCIS.Gov....

2weeks after filing....

APPROVED !!!, it is 3:30am here and me and my wife are very happy and celebrating. Lazycis, and this forum gave me a lot of support and confidence to do this.... Thankyou.
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This is great!!! Does it mean you can come back as a family?
 
dear immigration community portal,
first of all i read many of yours stories and i wish you to best of luck.
My story:
i had my interview on 05/29/2007 and my application recommended for approval but still didint get the oath letter. Finally yesterday decided to called the USCIS to check the status of my application, they said wait for few days and you will receive your welcome note. But i still wasnt satisfied with the news and ask her to give me their phone number ,for just in case if dont receive the letter, and i was transferred to another person. This time i was told that my case is pending for the security check.
Im now more confuse than ever and i think i will wait until Friday, and than i think i will sue the USCIS. any info would be helpful
thanks everyone
 
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shamrockNYC said:
I have downloaded ignatyev complaint but for some reason i cant read anything . Can you please do us all a favor and repost it or if it s possible e mail me a copy of it . thank you so much in advance
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Just righ-click on the link and select "save as". File is over 1Mb.
 
hakangok said:
dear immigration community portal,
first of all i read many of yours stories and i wish you to best of luck.
My story:
i had my interview on 05/29/2007 and my application recommended for approval but still didint get the oath letter. Finally yesterday decided to called the USCIS to check the status of my application, they said wait for few days and you will receive your welcome note. But i still wasnt satisfied with the news and ask her to give me their phone number ,for just in case if dont receive the letter, and i was transferred to another person. This time i was told that my case is pending for the security check.
Im now more confuse than ever and i think i will wait until Friday, and than i think i will sue the USCIS. any info would be helpful
thanks everyone
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If you had the interview, sue without delay and after serving complaint file TRO. You will get oath letter withing a week after filing TRO.
 
lazycis said:
This is great!!! Does it mean you can come back as a family?
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I dont think so unless she was already here in the US on a valid status. Remember after the I-130 is approved, it has to go through the redundant and inefficient process of the NVC where they will send documents to the same person one-by-one (wonder why they cannot just send everything at once). After that, it will move to the embassy before the final visa is issued.

That is why it takes so long. Someday, someone will have the bright idea (which is rather obvious) and streamline the process. The Uk takes less than 3 months (majority of the cases are less than 2 months) in uncomplicated cases to approve visa for spouses. Oh!, that process applies to both citizens and permanent residents.

I guess we are different.
 
Thoughtful said:
I dont think so unless she was already here in the US on a valid status. Remember after the I-130 is approved, it has to go through the redundant and inefficient process of the NVC where they will send documents to the same person one-by-one (wonder why they cannot just send everything at once). After that, it will move to the embassy before the final visa is issued.

I guess we are different.
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This is true. It will probably take another 5-8 months from here... but at least we are moving in the right direction.
 
deadline for filing an answer

Lazycis and other members,

Today is the deadline for US attorney to file a motion or answer after 130 days extension. The US attorney said that she would file an MTD. I am kind of anxious about it. DO you know if the deadline is 5pm or midnight for that?
 
wommei said:
Lazycis and other members,

Today is the deadline for US attorney to file a motion or answer after 130 days extension. The US attorney said that she would file an MTD. I am kind of anxious about it. DO you know if the deadline is 5pm or midnight for that?
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Technically, it's midnight but do not be overanxious, they can file it not in time along with a motion for extension of time. Check the attached decision re Marcetic, you may find it useful.
I like this part: "Can plaintiff be denied a green card, separated from his family and ordered deported, in clear violation of the prior order, because of that administrative error? We think not."
 
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