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

[jefkorn]

Your case is different from rest of the cases that have been discussed here so I think you will have to do some extra research.

Choice is definitely yours. Wait and hope that CIS will one day act on your case, which they most probably will but the only unknown is when.
Or you could start working on the lawsuit and give it a shot. You could also consult one or more experienced attorneys to see what they think about the feasibility of a lawsuit in your situation and get their take on the issue.

My I-140 was approved sometime in Dec 2006.

Actually, My employer screwed it up when i had chance to file in June 2007, when EB3-India was current until June 2003 in the June 2007 VB.

Unfortunately, iam here still waiting after 5 years.

What are my options here. Just bite the bullet or proceed with the lawsuit.

Thanks for your reply, you are doing an awesome job man

Vijay

 

[raju_vijay]

IMHO, what's important is the Receive date of I-485 and not the PD for the purpose of determining the delay in the context of mandamus suits for delayed AOS cases. If you are asking that if 8 days are enough to file for TRO like lvla did. May be yes, but it's going to be on quite a short notice. You could certainly follow lvla's example.
Do have a good record of efforts that you have done to resolve the delay(was it name check?) in your AOS?

Thanks. I dont know why the delay is, jef. If i call the customer service, they can give me reasons?

 

[lvla]

Vijay,

Sometimes there is not really any reason for the delay - USCIS does not even have name check as excuses now. The fact is they just choose to neglect our applications. After Oct 1, they will tell you your PD is not current so I-485 can not be processed.

Just like China, EB3 India is facing severe retrogression now - even with an early PD like yours. But your PD may become current sometime in FY 2009. And your I-485 wait time will be long enough by then. For now You could start preparing for lawsuit by studying this thread and collecting evidences - contacting USCIS by phone and infopass, contacting congressmen, senators, etc. Do it this month while your PD is still current! So you will be ready to file the suit once your PD becomes current, as your PD was current when you filed your I-485, and there are windows with current PDs in the past year but your case was not processed.

Start early. I only started preparing for the WOM lawsuit 2 weeks ago and did it in a huge rush due to the Oct 1 2008 retrogression, so I made mistakes in my applications and end up in an awkward situation. So don't waste your time in plain waiting...get started now, be ready when it is the time.

Thanks. I dont know why the delay is, jef. If i call the customer service, they can give me reasons?

 

[raju_vijay]

Vijay,

Sometimes there is not really any reason for the delay - USCIS does not even have name check as excuses now. The fact is they just choose to neglect our applications. After Oct 1, they will tell you your PD is not current so I-485 can not be processed.

Just like China, EB3 India is facing severe retrogression now - even with an early PD like yours. But your PD may become current sometime in FY 2009. And your I-485 wait time will be long enough by then. For now You could start preparing for lawsuit by studying this thread and collecting evidences - contacting USCIS by phone and infopass, contacting congressmen, senators, etc. Do it this month while your PD is still current! So you will be ready to file the suit once your PD becomes current, as your PD was current when you filed your I-485, and there are windows with current PDs in the past year but your case was not processed.

Start early. I only started preparing for the WOM lawsuit 2 weeks ago and did it in a huge rush due to the Oct 1 2008 retrogression, so I made mistakes in my applications and end up in an award situation. So don't waste your time in plain waiting...get started now, be ready when it is the time.

Ivla - You think i can start preparing now and be done before this week coz mine is current now till this month end?. Or are you suggesting for the next time when it becomes current?

 

[lvla]

Sorry, Vijay. I confused your case with EB2 India which has current PD this month. I don't know about the chance if your PD hasn't been current since filling. Let's see what other members think.

Recapture bill may be the ultimate solution to the visa backlog. Hopefully there will be a chance next year. ImmigrationVoice has a lot of information on latest immigration reform campaign efforts.

 

[raju_vijay]

Sorry, Vijay. I confused your case with EB2 India which has current PD this month. I don't know about the chance if your PD hasn't been current since filling. Let's see what other members think.

Recapture bill may be the ultimate solution to the visa backlog. Hopefully there will be a chance next year. ImmigrationVoice has a lot of information on latest immigration reform campaign efforts.

Actually you didnt, Ivla. I am in fact EB2 India.

 

[lvla]

Vijay, I probably misunderstood since you said in your original post that you are EB3. Sorry.

Since your PD is current for the remaining of this month, like jefkorn said, you might give it a shot if you are comfortable with filing in such a short timeline. Two important factors are: how long you have been delayed, and if you have tried other ways to push your case (contacting USCIS, senators, etc.)

I think there are favorable WOM cases with 14 months wait or so, but not sure. The WOM experts here will know better.

 

[hasanali]

Please share your experience,

Apllied for K1/fiancee visa through VSC 14 months ago, finally had the interview abroad in AbuDhabi seven weeks ago, case approved but still waiting for the visa to be issued. Does any one has the same experience to wait this long. can i file a law suit? please share your inputs. thank you for your care.

 

[eg0788]

Interview Experience

mka,

Since you recently gone thru the intervew can you pleas share your experience with us here. (i.e. how long does it takes, what type of question, what type of document they ask for, etc.) I received a interview letter recently and the instruction page said I need IRS Form for 3 year income tax but the notice itself does not ask for that. Do I need to have that?

 

[eg0788]

Can AUSA use interview has been scheduled to dismissed my case? I filed my WOM in Aug and the AUSA should answer my complaint by beginning of Oct. Since I have been schedule for an interview can they request to dismiss my case due to interview has been schedule? It has not happen yet, I just want to be prepare just in case. Any help or advise on this will be great.

Thanks!

 

[jefkorn]

eg0788,
What did you ask for in the prayer? If you asked for adjudication, interview can't be a basis for dismissal.

Can AUSA use interview has been scheduled to dismissed my case? I filed my WOM in Aug and the AUSA should answer my complaint by beginning of Oct. Since I have been schedule for an interview can they request to dismiss my case due to interview has been schedule? It has not happen yet, I just want to be prepare just in case. Any help or advise on this will be great.

Thanks!

 

[AAZZ]

How long should I wait before taking legal action?

Hello All,

I am waiting for N-400 interview since Jan 2008. The posted processing dates for my DO is July 2008 for N-400. I guess my questions are:

1. How long should I wait before taking any legal action. I want to take legal steps on DAY 1, when I will become eligible, provided there is a good chance of success.
2. What legal action can I take (WOM?, 1447b?, any thing else).
3. What are the pre-requisite should I cover, so that I will be ready for legal action at the earliest. Uptill now I have a) contacted a senator, b) Info pass, c) Contacted Ombdusman.

Is there any thing else I can do?

 

[lazycis]

"What constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the facts of a particular case." Yu v. Brown, 36 F. Supp. 2d 922, 935 (D.N.M. 1999)

There is no universal advice. One can file wom if application is outside of processing timeframe posted by USCIS, but the probability of success is low if wait has been less than a year. For now, try to resolve the issue via administrative channels and document every step.
The complaint would be based on 5 USC 551 et seq, 701, et seq, 28 USC 1331 (federal question).

 

[jefkorn]

1. How long should I wait before taking any legal action. I want to take legal steps on DAY 1, when I will become eligible, provided there is a good chance of success.

Please see lazycis's response. There are no bright line tests on how long one should wait.

2. What legal action can I take (WOM?, 1447b?, any thing else).

Since you didn't have the interview, you will file WOM. If you had the interview and no decision was made on your N-400 after 120 days, you would file 1447(b).

3. What are the pre-requisite should I cover, so that I will be ready for legal action at the earliest. Uptill now I have a) contacted a senator, b) Info pass, c) Contacted Ombdusman.

WOM requires exhaustion of administrative remedies available to the plaintiff before seeking judicial remedy. Exhaustion doesn't require that you wait for ever but if you can show that you have done all you could and it hasn't made any difference to your case, you should be good. Generally, folks do different combination of the following: congressperson, senator, ombudsman, service request, InfoPass, phone calls to USCIS, letters to local office or service center, even letters to the President and/or first lady. In case of 1447(b), you don't have to exhaust the remedies, just the passage of 120 days beyond the interview is sufficient as the basis.

Is there any thing else I can do?

Read and educate yourself on the process and may be even start working on your Complaint assuming it's a WOM. It will help you organize your thoughts and related documents(receipt notice, letters, copies of emails etc)

 

[jefkorn]

raju_vijay,
They certainly can, the real question is is anyone of those are accurate and will they satisfy you as the applicant who has to continue waiting. I agree with lvla, USCIS esp. the customer service folks can contrive any "reason" for the delay and it would be vague enough to keep you guessing. So I would say, go ahead and check with them but don't put too much stock into it.

Thanks. I dont know why the delay is, jef. If i call the customer service, they can give me reasons?

 

[jefkorn]

Here's a listing of some of the cases in which 6-24 months delay was declared unreasonable.
http://boards.immigration.com/showpost.php?p=1915853&postcount=16681

http://boards.immigration.com/showpost.php?p=1909352&postcount=16557

http://boards.immigration.com/showpost.php?p=1909362&postcount=16558

When filing WOM, you will have to show the court that you exhausted remedies available to you before filing the action. If AUSA gets your AOS adjudicated by contacting CIS either within the initial deadline to response to the complaint or by one or more extensions of time to respond , you won't have to worry about if the delay is unreasonable or not. The determination of whether the delay is unreasonable will be made when the court issues its decision, which means your case would have progressed in later stages of the litigation.

I think there are favorable WOM cases with 14 months wait or so, but not sure. The WOM experts here will know better.

 

[lvla]

Urgent help needed

Dear friends, please help.

I was out of town for a business day trip and came back at 10:30 pm only to find the following in my mail box:

1. An ASUA was assigned to my case. She filed a "Notice of Entry of Special Appearance And Request for Service" on Monday Sept 22, as follows,

"Undersigned Assistant United States Attorney, ***, gives notice that she is specially entering her appearance in this proceeding pending the completion of service on the named federal respondents. It is anticipated that Petitioner's return of executed service on the named federal respondents, in accordance with Rule 4(i), Federal Rules of Civil Procedure, will be filed shortly. In the interim, the federal respondents do not waive service of the complaint and summons. It is requested that a copy of all filings in this case be provided to: AUSA..."

Does this mean that I will have to file the return receipts from all the defendants before the AUSA will take any action? I checked Rule 4(i) at http://www.law.cornell.edu/rules/frcp/Rule4.htm,
which doesn't seem to have such requirements. Is sending out all the documents to all defendants already considered as "completion of service", or proof of delivery is needed? I filed a "Certificate of Service" with the court last Friday and give U.S. Attorney's office a copy on same day.

As of now only 3 of the 5 packages I sent out Friday using priority mail have an online status of "delivered." The other 2 packages to Chertoff and Mukasey still only show "package accepted" without further updates. I only received the return receipt from USCIS TSC as of now.

What should I do about this notice? The judge ordered government to respond by 5pm next Monday, Sept 29. Should I call the AUSA to find out what she will do?

2. My Request for Documents was returned by the court clerk with a note of "filed in error". A "Notice of Return of Discovery Materials" form was attached. It says:

"The attached or enclosed discovery materials you submitted to the United States District Clerk are being returned to you inasmuch as the Clerk does not accept discovery materials for filing except in the following events as provided by Federal Rule of Civil Procedure 5(d) or Local Civil Rule 5.2:

Fed. R. Civ. P. 5(d) The presiding judge has ordered that the discovery materials be filed. (Attach the order so directing.)

LR 5.2(c) The discovery materials relating to a discovery proceeding identified by an attached motion and are comprised of only the portions of the discovery materials in dispute.

LR 5.2(d) The discovery material are necessary for consideration of a pretrial motion, and only the portions of the discovery materials on which the party relies to support or oppose the motion are offered for filing.

If one or more of the exceptions in this notice applies, please check on the appropriate line and return this notice and the discovery materials you wish to have filed to the Clerk's Office."

Questions:
1). Should I check one option and file it again? Which one is more applicable? Option 2 or 3?
2). Do I still get the original file date or it will change to tomorrow?
3). Should I change the deadline for Document Request?
4). If no changes to the Request, do I need to serve a copy of this to every defendant and AUSA again?

Urgent...please advise! Thank you so much!

 

[lazycis]

lvla,

Wait with discovery request until AUSA files an answer. The USCIS/FBI won't be able to respond quickly anyway and experience shows that they rarely provide anything useful. Discovery starts after an answer is filed.
As for service of summons, file second pages of summons+copy of certified mail receipts+printouts from USPS website as a proof that it was delivered.

 

[jefkorn]

lvla,

Here are real examples of delivery time lines as tracked online by USPS. Looks like there was a delay of one day between Notice Left and Delivered status.
The actual green card(the delivery confirmation signed at the destination) will arrive much later than online status update. So getting the online printout is your best bet to avoid further delay in filing the certificate of service.

Sample USPS online status for delivery to Chertoff
07/08/2008 3:20 PM - Acceptance at <<post office from where plaintiff mailed>>
07/13/2008 3:01 PM - Arrival at Unit
07/13/2008 7:10 AM - Notice Left
07/14/2008 7:50 AM - Delivered


Sample USPS online status for delivery to AG
07/08/2008 3:20 PM - Acceptance at <<post office from where plaintiff mailed>>
07/13/2008 1:35 PM - Arrival at Unit
07/13/2008 7:00 AM - Notice Left
07/14/2008 4:58 AM - Delivered

 

[lvla]

Thank you, lazycis and Jeff.

I think the two packages with missing status probably have been delivered already, as the others to DC were delivered as early as Monday. USPS probably messed the status up...the status may not even be updated or show "delivered" at all. In this case I will have to wait for return receipt...

So if I didn't get the return of service in before the court ordered deadline, will the AUSA still respond?

I think the chances to get any good results from the Preliminary Injunction petition before Oct 1 is really low now. Well, at least I tried. And hopefully the WOM stands a better chance.