Vijay, you can follow lvla example and do the same. File a civil lawsuit, then file motion for temporary restraining order. Those who wait for more than 2 years and PD was current at any time during those years should file a lawsuit, no matter what happens with visa availability. We are here to help you folks on an individual basis.
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Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
Vijay, you can follow lvla example and do the same. File a civil lawsuit, then file motion for temporary restraining order. Those who wait for more than 2 years and PD was current at any time during those years should file a lawsuit, no matter what happens with visa availability. We are here to help you folks on an individual basis.
jerrylexus
New Member
You need to file Motion for summary judgment. See example here:
http://immigrationportal.com/attachment.php?attachmentid=16629&d=1183571753
Do you know how long i have to wait after i file this judgement, is it another 60 day wait before i get a hearing? thanks for all your help
Yeah, by all means. You spent two years in just NC which now only has to be pending for 180 days before the adjudication can be completed. You can document your efforts saying that you tried every avenue to get your application adjudicated and NC was quoated to you as the reason for not adjudicating your AOS, so pursued all avenues available to you to find the status of NC or expedite it.
I found this part a little complicated to address. I contacted USCIS in Sept 2007 (2 yrs after submittal, PD current) and was told name check pending. I checked again in the beginning of Dec. 2007 (when PD retrogressed again) and was told the same. Then I wrote to senators, congressmen, etc. on Dec 5. Got a letter from the Senator on Dec 13, 2007 saying name check still pending. Then got a letter from FBI on February 7, 2008 saying name check was cleared on October 3, 2007 and sent back to USCIS. Then I called USCIS and they told me name check cleared.
It appears that there was a hole between FBI and USCIS communications during this period of time (From Oct 3 when FBI claimed NC clear to early December when I called USCIS and they told me NC still pending). Either FBI didn't send back my NC results on time as they claimed, or USCIS didn't recognize the NC results in time.
I am afraid if I mentioned all these in details, USCIS may catch this time gap and use this against me, claiming FBI didn't send them the NC results in time and it's not them who delayed my application (as NC was still required at that time). Also I do not have a written response from CIS that my name check was cleared in October 07.
Do you know how long i have to wait after i file this judgement, is it another 60 day wait before i get a hearing? thanks for all your help
I assume AUSA filed an answer (check the title for the last filing from government attormey). You can file MSJ as soon as you prepare it.
Another question
Through search on PACER, I found that in both the Tang v. Chertoff (07/02/07) case and the Srinivasan case where the plaintiffs filed a Preliminary Injunction, they both included a Affidavit. Is it required to do so?
Sorry for all the questions and my lack of legal knowledge. I wish I had more time to do more research...
Through search on PACER, I found that in both the Tang v. Chertoff (07/02/07) case and the Srinivasan case where the plaintiffs filed a Preliminary Injunction, they both included a Affidavit. Is it required to do so?
Sorry for all the questions and my lack of legal knowledge. I wish I had more time to do more research...
I would add the USCIS NC memo as well. You can see my sample complaint to get an idea on how to refer to that.I found this link related to the USCIS claim you talked about - see Q7. Do you think this is sufficient as an exhibit or should I attach the FBI Feb memo as well?
http://www.uscis.gov/portal/site/us...nnel=098daca797e63110VgnVCM1000004718190aRCRD
If you feel strongly about leaving it out, that should be fine. The favorable cases you have collected are enough.I also noticed that plaintiff's counsel was Siskind's law office. You may want to look at case files to study some good ideas.I have attached the case (page 2). It could be a typo as it says otherwise in the court order. But still I think I should probably leave this one out? I have collected 5 cases in my district court with favorable decisions since 2007.
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I don't think that you need to file an affidavit with the complaint.
Through search on PACER, I found that in both the Tang v. Chertoff (07/02/07) case and the Srinivasan case where the plaintiffs filed a Preliminary Injunction, they both included a Affidavit. Is it required to do so?
Sorry for all the questions and my lack of legal knowledge. I wish I had more time to do more research...
Miscommunication between USCIS and FBI is nothing new. In fact, USCIS didn't have a automatic procedure in place to process cases when FBI NC results did come back from FBI. Even when USCIS maintained that NC was required, you can find scores of cases decided by courts declaring that USCIS couldn't simply shift the blame to FBI and absolve itself from its non-discretionary duty to adjudicate immigration applications within reasonable time.
CIS has been playing old song and dance when it required NC in the past but courts didn't always buy it so don't worry about it. Hopefully in your case, court will realize esp. in the light of new NC memo that USCIS has been requiring it all along against the law.
It's ok if you don't have a written NC status from USCIS. You can use the FBI response as the proof that name check is cleared. You should emphasize that in the light of new memo, your AOS is ready for immediate adjudication.
I also think that you should add following to your prayer something on these lines. Others, please chime in on perfecting the language.
"In the likely case of favorable adjudication, provide the plaintiff with written approval notice and permanent resident card promptly after adjudication."
CIS has been playing old song and dance when it required NC in the past but courts didn't always buy it so don't worry about it. Hopefully in your case, court will realize esp. in the light of new NC memo that USCIS has been requiring it all along against the law.
It's ok if you don't have a written NC status from USCIS. You can use the FBI response as the proof that name check is cleared. You should emphasize that in the light of new memo, your AOS is ready for immediate adjudication.
I also think that you should add following to your prayer something on these lines. Others, please chime in on perfecting the language.
"In the likely case of favorable adjudication, provide the plaintiff with written approval notice and permanent resident card promptly after adjudication."
I found this part a little complicated to address. I contacted USCIS in Sept 2007 (2 yrs after submittal, PD current) and was told name check pending. I checked again in the beginning of Dec. 2007 (when PD retrogressed again) and was told the same. Then I wrote to senators, congressmen, etc. on Dec 5. Got a letter from the Senator on Dec 13, 2007 saying name check still pending. Then got a letter from FBI on February 7, 2008 saying name check was cleared on October 3, 2007 and sent back to USCIS. Then I called USCIS and they told me name check cleared.
It appears that there was a hole between FBI and USCIS communications during this period of time (From Oct 3 when FBI claimed NC clear to early December when I called USCIS and they told me NC still pending). Either FBI didn't send back my NC results on time as they claimed, or USCIS didn't recognize the NC results in time.
I am afraid if I mentioned all these in details, USCIS may catch this time gap and use this against me, claiming FBI didn't send them the NC results in time and it's not them who delayed my application (as NC was still required at that time). Also I do not have a written response from CIS that my name check was cleared in October 07.
Can anyone tell me if the joint conference/status report is a common thing? I looked up a couple cases but didn't see it in their docket. Also, do AUSA still have to answer my complaint? I only received the notice of appearance no answer yet. The 60 days end 10/12.
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Hi Vijay,
You can send me an email from the forum but I would suggest that post the questions and experiences here in the forum for everyone's benefit unless it's private information or situation that you don't feel comfortable discussing in the forum. I'm not an expert by any means but will share whatever I can.
As lazycis said, take the first step and go for it. If you have class action in mind for a collective group of people in similar situation, it takes longer and is generally difficult to get a class certified. Filing individual action is not a bad idea. Judging from your success, others will follow suit. Your five years' wait is unreasonable by any standards. You may even want to look into the possibility of retroactive approval (from some earlier date so you can apply for Citizenship earlier instead of waiting for another 5 years from your regular AOS approval date. You can look here for ideas. Also look at post from gosueins who got his AOS approved from a past date because he was interviewed and was deemed eligible for approval but name check (or whatever else the excuse of the day was) prevented his approval.
You can send me an email from the forum but I would suggest that post the questions and experiences here in the forum for everyone's benefit unless it's private information or situation that you don't feel comfortable discussing in the forum. I'm not an expert by any means but will share whatever I can.
As lazycis said, take the first step and go for it. If you have class action in mind for a collective group of people in similar situation, it takes longer and is generally difficult to get a class certified. Filing individual action is not a bad idea. Judging from your success, others will follow suit. Your five years' wait is unreasonable by any standards. You may even want to look into the possibility of retroactive approval (from some earlier date so you can apply for Citizenship earlier instead of waiting for another 5 years from your regular AOS approval date. You can look here for ideas. Also look at post from gosueins who got his AOS approved from a past date because he was interviewed and was deemed eligible for approval but name check (or whatever else the excuse of the day was) prevented his approval.
Hi lazycis and jefkorn
You guys have been doing an awesome job helping out folks on individual basis. Actually, We are working on a similar issue but want to create a bigger impact. we want USCIS to be more responsible towards treating the legal immigrants.
Here is the link for more details
http://immigrationvoice.org/forum/showthread.php?t=21493
With your experience on lawsuits, I will definitely need your help in this. Iam not doing this just for personal benefit. I would like to help everyone out there who are facing this scenario for years and years. I, for one, filed by GC in 2003 and still waiting. Lot of people have filed even before me and are still waiting. I want to help every one. Please let me know your thoughts. Incase, If i want to reach you guys outside this forum, is it ok. Based on your response, I will discuss further.
Thanks
Vijay
What was the affidavit about? And was it attached to Complaint or some other document or motion?
Through search on PACER, I found that in both the Tang v. Chertoff (07/02/07) case and the Srinivasan case where the plaintiffs filed a Preliminary Injunction, they both included a Affidavit. Is it required to do so?
Sorry for all the questions and my lack of legal knowledge. I wish I had more time to do more research...
Through search on PACER, I found that in both the Tang v. Chertoff (07/02/07) case and the Srinivasan case where the plaintiffs filed a Preliminary Injunction, they both included a Affidavit. Is it required to do so?
Sorry for all the questions and my lack of legal knowledge. I wish I had more time to do more research...
I think you need to include affidavit as TRO should be based on undisputed facts. You can get it notarized at a local bank.
jefkorn and lazycis,
The Affidavit was attached as an Exhibit for the Preliminary Injunction of both cases. It summarized the facts in the Complaint and was notarized. See attachments.
I think after I include the Affidavit, I won't need to included all the facts as in the Complaint anymore?
Another question: I found a Document Request template from a previous page of this thread. I'd like to include this, especially in regard of "Statistical information from USCIS on number of AOS applications approved without obtaining FBI name check clearance." and I want to request USCIS to provide the number of cases approved with PD after mine. Should I file this alone, or can I raise such requests in the Preliminary Injunction and TRO?
Thanks!!!
The Affidavit was attached as an Exhibit for the Preliminary Injunction of both cases. It summarized the facts in the Complaint and was notarized. See attachments.
I think after I include the Affidavit, I won't need to included all the facts as in the Complaint anymore?
Another question: I found a Document Request template from a previous page of this thread. I'd like to include this, especially in regard of "Statistical information from USCIS on number of AOS applications approved without obtaining FBI name check clearance." and I want to request USCIS to provide the number of cases approved with PD after mine. Should I file this alone, or can I raise such requests in the Preliminary Injunction and TRO?
Thanks!!!
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vijay_anand_v
Registered Users (C)
Big Question
Hi jefkorn and lazycis
Just a background on my case, My Labor is Eb3 - India - PD - May 2003.
I applied for my I-485 only during the last year July fiasco. By the time, my application got accepted in August, VB already showed Unavailable for Eb3-India. My PD never became current after that. Do you think, I can still File Lawsuit.
Please let me know
Thanks
Vijay
Hi jefkorn and lazycis
Just a background on my case, My Labor is Eb3 - India - PD - May 2003.
I applied for my I-485 only during the last year July fiasco. By the time, my application got accepted in August, VB already showed Unavailable for Eb3-India. My PD never became current after that. Do you think, I can still File Lawsuit.
Please let me know
Thanks
Vijay
Hi Vijay,
You can send me an email from the forum but I would suggest that post the questions and experiences here in the forum for everyone's benefit unless it's private information or situation that you don't feel comfortable discussing in the forum. I'm not an expert by any means but will share whatever I can.
As lazycis said, take the first step and go for it. If you have class action in mind for a collective group of people in similar situation, it takes longer and is generally difficult to get a class certified. Filing individual action is not a bad idea. Judging from your success, others will follow suit. Your five years' wait is unreasonable by any standards. You may even want to look into the possibility of retroactive approval (from some earlier date so you can apply for Citizenship earlier instead of waiting for another 5 years from your regular AOS approval date. You can look here for ideas. Also look at post from gosueins who got his AOS approved from a past date because he was interviewed and was deemed eligible for approval but name check (or whatever else the excuse of the day was) prevented his approval.
yourfirstname
Registered Users (C)
jefkorn and lazycis,
The Affidavit was attached as an Exhibit for the Preliminary Injunction of both cases. It summarized the facts in the Complaint and was notarized. See attachments.
I think after I include the Affidavit, I won't need to included all the facts as in the Complaint anymore?
Another question: I found a Document Request template from a previous page of this thread. I'd like to include this, especially in regard of "Statistical information from USCIS on number of AOS applications approved without obtaining FBI name check clearance." and I want to request USCIS to provide the number of cases approved with PD after mine. Should I file this alone, or can I raise such requests in the Preliminary Injunction and TRO?
Thanks!!!
TRO_Affidavit.pdf : Why would you put all personal information (including signature) on public record? Was this case filed through an attorney?
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TRO_Affidavit.pdf : Why would you put all personal information (including signature) on public record? Was this case filed through an attorney?
I didn't notice the personal info. The document was retrieved from PACER, so I think it is public record? Anyway I removed the attachment.
Hi,
I received a call from the AUSA and she told me that I was schedule for an interview on Nov. However, I have not receive any letter/notice yet. She is proposing to hold my case until Nov. 2008. I am feeling like I should say no and let the case go on. Should I say no to it? If I accept to hold the case would it delay things?
I received a call from the AUSA and she told me that I was schedule for an interview on Nov. However, I have not receive any letter/notice yet. She is proposing to hold my case until Nov. 2008. I am feeling like I should say no and let the case go on. Should I say no to it? If I accept to hold the case would it delay things?
Second draft of Complaint
Dear all, here is my second draft. Any suggestions and comments are greatly appreciated!
I am requesting a hearing on Sept 29 in the TRO. So that means I have to file by tomorrow or Friday considering the 10 days?
It's going to be a sleepless night for me...
(I made another update to the draft. Current is v2.1. I included information about USCIS approving I-485 cases without cleared NC in June/July 2007. Paragraph 23 to 27 are NC related. Found this information and a lot of other useful info and documents from the previous pages of this thread, from folks like lazycis, jefkorn, wom_ri, wommei, etc. Thanks to you all!)
Dear all, here is my second draft. Any suggestions and comments are greatly appreciated!
I am requesting a hearing on Sept 29 in the TRO. So that means I have to file by tomorrow or Friday considering the 10 days?
It's going to be a sleepless night for me...
(I made another update to the draft. Current is v2.1. I included information about USCIS approving I-485 cases without cleared NC in June/July 2007. Paragraph 23 to 27 are NC related. Found this information and a lot of other useful info and documents from the previous pages of this thread, from folks like lazycis, jefkorn, wom_ri, wommei, etc. Thanks to you all!)
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Dear all, here is my second draft. Any suggestions and comments are greatly appreciated!
I am requesting a hearing on Sept 29 in the TRO. So that means I have to file by tomorrow or Friday considering the 10 days?
It's going to be a sleepless night for me...
(I made another update to the draft. Current is v2.1. I included information about USCIS approving I-485 cases without cleared NC in June/July 2007. Paragraph 23 to 27 are NC related. Found this information and a lot of other useful info and documents from the previous pages of this thread, from folks like lazycis, jefkorn, wom_ri, wommei, etc. Thanks to you all!)
70. According to the requirements of 8 C.F.R. § 103.2(b)(18), her I-485 Application should have been reviewed twice by the USCIS district director (at 1 and 1.5 year marks), once by the USCIS regional commissioner (at 2 year mark) and once by the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement (at 2.5 year mark). There is no evidence that these procedures have been followed. Therefore, USCIS has violated the Federal Regulations and “unlawfully withheld” adjudication of a legal alien’s I-485 Application. Furthermore, 8 C.F.R. § 103.2(b)(18) is not part of the Subchapter II of the Chapter 12 of the INA, therefore jurisdictional bar of the INA § 1252(a)(2)(B)(ii) does not preclude review of the withholding of adjudication. Thus, this Court has the power to grant a relief under 5 U.S.C. § 706(1) and to compel USCIS to perform agency action “unlawfully withheld”.
Regarding 10 days: make sure somebody (technically you cannot do it, but if nobody else cannot, just do it yourself) hand-delivers complaint and TRO to District Attorney's Office (civil process clerk) to avoid additional days given to respond if service is performed by mail.