*****Final Draft of Our Reply to the Govt.*****

I think we need to point out CIS is operating a "black box". Many applicants don't know the exact status. When CIS was asked, they had unreasonable excuses on that.

For example, I saw a lot of people complained the on line status doesn't reflect the real status. It was not updated even if FP,name check were done. So when CIS was asked, the answer was like "name ckeck was not done...blah...". This gives CIS enough excuses to escape from the responsiblity.
 
One more addition

We should aim to provide some hard facts to refute BCIS claims. A logical argument can always be counted by another argument.

But with facts, the side which has accurate facts, will win, as long as we are at the same level/close level in logical arguments.

In this case, facts are with us.

BCIS will make many logical arguments to cover their flaws, but they can ripped with facts.

For example BCIS says, that the delays are happening due to security checks. We can ask for facts, as to how long it takes for them to clear it, and then provide the judge with facts, that FBI, predominantly clears finger prints in 1 day. Most external agencies which do background checks, clear such checks in 5 working days, electronically. Second FP's are themselves cleared by BCIS in a month. So howcome First FP is not handled in 15 months.
An uncleard security check poses security threats to the nation, as a potential criminal/ terrorist is free to do whatever he/she desires. So what effort does BCIS do to make sure Security checks are cleared asap, and therefore make the country secure.

BCIS talks about conflict of interest on our side. We should claim that BCIS also has conflict of interest in arguing the case to be denied as if the court goes to case, their failure to provide efficient and genuine immigration benefits to America, will come out open so they are trying to hide their failures.

BCIS also inappropriately asks for many unnecessary RFE's, at AOS stage, even though Salary stubs, company letter are included with AOS petition. AOS is for future employment, so why should a company be burdened to prove it repetitively when BCIS itself is ineffective to do its task in more than 1 year just once. Proof of paying and intent is established at I-140 stage, so why is it asked in AOS stage again.
If Security clearance is a mandatory requirement, why do they ask for multiple FP's. It should be a phase and once passed, there should be no need to redo it. It is an internal flaw at BCIS.
Why hasn't the Attorney answered that. Why hasn't the BCIS Director rectified it till now. He is prima facie responsbile for this flaw.

I also noted from BCIS reply, that they are intentinally talking on/detailing what happens outside BCIS. Everybody knows that.
The issue here is what is happening inside BCIS, which they have smartly avoided. Our focus should be to inform the judge that BCIS attorney is intentionally talking about something that we are not complaining. He is lecturing on how a GC can be achieved by an applicant. That is not the issue here. The issue is what are the steps followed and how by BCIS in adjudicating an AOS petition once they receive an application.
For example, does BCIS have a daily report to indicate how may Security checks have not been cleared 2 weeks after FP is done. Then does some officer pursue such cases with relevant agencies so that national security is not compromised.

We should argue this on our grounds, and not theirs.
 
Originally posted by hrithikroshan11
This is excellent. The draft coming in just 2 days after Sunday meeting is amazing. Rajiv, you are not good, but too good.

How about including following points in the response:

1. Refute their claim of processing in the order of receipt of application. This is very important. They have no policy in processing applications. Some applications get processed in 2 months especially RFE applications while others keep pending for longer periods.

2. Ask them the legality of AC-21 when 140 and 485 are filed concurrently. How can a person apply AC-21 if they cannot adjudicate 140 applications within 6 months? If they are really serious, they should approve 140 applications within 6 months.

3. If all security checks are done at 485 stage, why is 140 processing taking so long?
Click to expand...


I think we will take these issues up at the Summary Judgment stage. Thanks for your suggestions. keep them coming.
 
Re: correction of a line

Originally posted by ag28
I may have misunderstood but the last line on page 1
"Defendant's opposition poses five inapposite arguments that warrant reply"
should it not be either " plaintiff's opposition" or "just the defendants" as they are the ones who are making irrelevant arguments. Also, we are presenting these arguments from page 2 onwards and replying to them.
Is my thinking right?
Click to expand...


"Opposition" is the document they have filed. I think we are OK.
 
Originally posted by dsatish
One more suggestion :
While countering objection 1 ,i think that you should mention the following (while explaining the commonality of class),in page 7 :
"All the members of the 5 sub classes that the defendants refer to, face the same laws regarding job portability and career opportunities after getting the green card. The laws and restrictions governing the employment based adjustment of status applicants , are same for all categories. The differences are only in the adjudication procedures"

I know that the above sentense needs some rework, but i mean to say that it might be better to explain the commonality of laws governing all the sub categories of EB I485 applicants. Every one goes throught the same career stagnation problems, same job portability restrictions etc. For example AC21 does not distinguish between different sub categories.
Click to expand...

:) Not a good idea. I will explain offline if you remind me.
 
Looked at all of your suggestions

Originally posted by dsatish
Page 15, line 6. It may be better to rewrite the sentence "The common harm inflicted by unreasonable delay is self-evident".
How about saying "These plaintiffs face the same difficulties as the other plaintiffs and the class in general, due to the delays in the adjudication of their cases"
Click to expand...


Like I said, there is a legal eason for every move. I will explain offline.
 
Re: Let us do another conference call

Originally posted by operations
I will explain the posture of the case.
Click to expand...

When(date and time) do you want it to be scheduled ? Let's go with your preference. Those who can make it will make it.
 
TSC is processing cases filed in Dec02/Jan 03 based on the expiry of FP, while Jan 02 to Nov 02 are not processed. When asked, CIS says cases are processed ONLY in the order they are received. This is very unfair. Applicants should not be penalized or benefit from a buggy fingerprint scheduling system and CIS own
mistakes.

This defense of the case pending longest being processed first is absolutely bogus and must be exposed. Today its based on FP expiry, tomorrow who knows what arbitrary criteria will be imposed ? :eek:
 
Rajiv : extension to the Naturalization injury?

As a former military officer( of the armed forces of a NATO founding member country), I wanted to continue lending my personal abilities to uphold the ideals of democracy by serving with US reserves/guards. Unfortunately, US Citizenship is a requirement for commissioning as an officer. Due to the extensive delay in the green card process, (and predictable delays in the naturalization process), I am unable to do so, because of the age cut-off criteria for entry into the military.

At a time when there is continuous discussion of the overstretching of the US military, with recent coverage of statements by US lawmakers favoring the institution of the draft, this inexcusable delay by the USCIS is not only injurous to me, but also to the United States of America.
 
Interesting fact about security checks...

Interesting fact about security checks...

The necessary security checks have a short shelf life, Smulian said, adding to the BCI's workload. A check must be started within 15 days of receiving an application, and it expires 35 days after the check is completed. Since no applications are completed that quickly, Smulian said, the checks are done several times for every applicant.

"The cases have been piling up and piling up and piling up. It's a vicious circle. The longer the cases sit, the more times you have to do a security check," Smulian said. "It's basically a system that is literally out of control."

http://www.nyjournalnews.com/newsroom/062203/a0122backlog.html
 
May I recommend this.

Team,
This is regarding presenting and arguing our case in court for Class Action as well as Relief from delay.

The judge will be more convinced if he/she gets 1000 members rather than 7 members petitioning in. At the same time, we are hesistant to come out publicly against BCIS so that our case do not get negatively impacted.
Can we request the following protection from the Judge for our members.
Unlike other Class Action suits, where the plaintiff have already suffered the damage and there is no further damage possible (for example, a person has been fired already so he has nothing to fear when suing), in our case, our processing is still ongoing, and therefore we are in a unique situation where further harm can be inflicted by BCIS.
Each member who is willing to sign the petition of grievance will be provided a special status.
1) Their case will be guaranteed to get approved in 60 days after filing the petition, except for one condition. That condition is failure to pass the security check.
2) BCIS will not be allowed to issue any RFE against such a petitioner.
3) If BCIS fails to complete the security check in 60 days, they will have to excerise their power to bypass the security check, and grant the GC to the petitioner. They are free to perform parallel security check , and revoke the GC if security check is failed. This will ensure that National Security is not compromised.
4) All such approvals will be direct, meaning they will not be required to go for an Interview.
5) BCIS will allocate 1 Adjudicator per 10 petitioners, who will work dedicated on their cases to get fast Security approval. They will report directly to the judge thru a manager on a daily basis on the progress made on each case of the petitioner.
Each Petitioner will pay an additional fee of $310.00, to compensate BCIS for the extra resources, so that others are not negatively impacted.

Above steps can be done by BCIS without any need for law change, as well as meeting BCIS's primary responsbility of no compromise on Security.
The EB cases at AOS stage are already approved for Labour and I-140, and therefore the only main check done at AOS stage is Security. I am excluding unapproved I-140's. They will be automatically benefitted if this chunk gets done in 2 months.
------
If above looks feasible idea, then lets run this within the forum and see how many members are willing to sign this, and pay the additional amount.
---
Even if BCIS or Judge rejects this, we would have prima facie proved that we have 1000 petitioners who can join the case but cannot because of lack of reasonable protection from BCIS.
--
On the other hand, if we get 1,000 or more members agreeing to this, this can swing the momentum big time in our favour.
We can easily argue our logic to the Judge that we are asking for nothing special as our cases have already been pending for 180 days, and BCIS now gets two more months, making it total of 8 months.
-----
 
Re: May I recommend this.

Originally posted by vi00
Team,
This is regarding presenting and arguing our case in court for Class Action as well as Relief from delay.

The judge will be more convinced if he/she gets 1000 members rather than 7 members petitioning in. At the same time, we are hesistant to come out publicly against BCIS so that our case do not get negatively impacted.
Can we request the following protection from the Judge for our members.
Unlike other Class Action suits, where the plaintiff have already suffered the damage and there is no further damage possible (for example, a person has been fired already so he has nothing to fear when suing), in our case, our processing is still ongoing, and therefore we are in a unique situation where further harm can be inflicted by BCIS.
Each member who is willing to sign the petition of grievance will be provided a special status.
1) Their case will be guaranteed to get approved in 60 days after filing the petition, except for one condition. That condition is failure to pass the security check.
2) BCIS will not be allowed to issue any RFE against such a petitioner.
3) If BCIS fails to complete the security check in 60 days, they will have to excerise their power to bypass the security check, and grant the GC to the petitioner. They are free to perform parallel security check , and revoke the GC if security check is failed. This will ensure that National Security is not compromised.
4) All such approvals will be direct, meaning they will not be required to go for an Interview.
5) BCIS will allocate 1 Adjudicator per 10 petitioners, who will work dedicated on their cases to get fast Security approval. They will report directly to the judge thru a manager on a daily basis on the progress made on each case of the petitioner.
Each Petitioner will pay an additional fee of $310.00, to compensate BCIS for the extra resources, so that others are not negatively impacted.

Above steps can be done by BCIS without any need for law change, as well as meeting BCIS's primary responsbility of no compromise on Security.
The EB cases at AOS stage are already approved for Labour and I-140, and therefore the only main check done at AOS stage is Security. I am excluding unapproved I-140's. They will be automatically benefitted if this chunk gets done in 2 months.
------
If above looks feasible idea, then lets run this within the forum and see how many members are willing to sign this, and pay the additional amount.
---
Even if BCIS or Judge rejects this, we would have prima facie proved that we have 1000 petitioners who can join the case but cannot because of lack of reasonable protection from BCIS.
--
On the other hand, if we get 1,000 or more members agreeing to this, this can swing the momentum big time in our favour.
We can easily argue our logic to the Judge that we are asking for nothing special as our cases have already been pending for 180 days, and BCIS now gets two more months, making it total of 8 months.
-----
Click to expand...

If you request this, you are falling into the trap of USCIS...they already alleged that the plantiffs are requesting the court to order USCIS to adjudicate their cases first violating the queue...

Second thing...if you put such a proposal and court accepts it...everybody want to give their names and the plantiff list will be the same as the backlog list..

So, to me this is not a good idea,

-rajum
 
I went for 2nd FP in AUG 2003 and somehow this was not recorded in the lousy BCIS system and I received a FP notice in Nov. I went to the ASC in Nov 25 and the supervisor said that I need not be FPed because they are available on file. I then called the customer support line and explained my predicament. Apparently they did a case inquiry and sent me a letter stating that the FPs are not available and that they will send me a FP notice again. I have yet to receive this notice even after 2 months. If needed I can send these documents to prove the inefficiency of the BCIS FP system. It is broken and needs to be fixed.
 
Rajum,
Before I disagree with you, let me state that we are on the same side here.

Have you ever considered what will happen if the case goes to court, and BCIS claims since the matter is sub-judice, it will stop processing the case of plaintiffs, so that status-quo is maintained. A simple move like this, and BCIS would win even if they lost the case, because if it becomes class action, it is not getting decided before 2 years, and if not a class action, then we are getting no benefit (apart from 7 mentioned).
The only good thing is that if it becomes class action, press coverage may force BCIS to change. But due you think any relief is possible in the next 6-12 months with no court decision in our favour.

And to be honest, anybody who reads my posting knows that a Judge will never agree to my suggestion, as essentially I am asking for a GC for coming to court.
The main gist of my suggestion is that we have to put a thought in the mind of the judge that thousands are suffering, not 7. We are ready to pay, yet BCIS is doing nothing. Threfore it can ask BCIS to give immediate relief.

Do you think that we can do an anonymous poll on this site and see how many persons would be willing to join the case if they were given some kind of protection from BCIS. Similarly how many are willing to pay , say, extra $500, for faster processing.

I also think that the recent moves happening at various Service centers have to do with many many guys contacting Senators, sending faxes, sending e-mails, media coverage, the case filed by Rajeev. But it has been done more as cya and punishing us rather than truly giving us any relief. It is easy to see the mischief of BCIS to allocate already limited resources of BCIS to new cases, when they are saying that it is meant for providing relief for old backlogged cases.
 
Originally posted by vi00
Rajum,
Before I disagree with you, let me state that we are on the same side here.

Have you ever considered what will happen if the case goes to court, and BCIS claims since the matter is sub-judice, it will stop processing the case of plaintiffs, so that status-quo is maintained. A simple move like this, and BCIS would win even if they lost the case, because if it becomes class action, it is not getting decided before 2 years, and if not a class action, then we are getting no benefit (apart from 7 mentioned).
The only good thing is that if it becomes class action, press coverage may force BCIS to change. But due you think any relief is possible in the next 6-12 months with no court decision in our favour.

And to be honest, anybody who reads my posting knows that a Judge will never agree to my suggestion, as essentially I am asking for a GC for coming to court.
The main gist of my suggestion is that we have to put a thought in the mind of the judge that thousands are suffering, not 7. We are ready to pay, yet BCIS is doing nothing. Threfore it can ask BCIS to give immediate relief.

Do you think that we can do an anonymous poll on this site and see how many persons would be willing to join the case if they were given some kind of protection from BCIS. Similarly how many are willing to pay , say, extra $500, for faster processing.

I also think that the recent moves happening at various Service centers have to do with many many guys contacting Senators, sending faxes, sending e-mails, media coverage, the case filed by Rajeev. But it has been done more as cya and punishing us rather than truly giving us any relief. It is easy to see the mischief of BCIS to allocate already limited resources of BCIS to new cases, when they are saying that it is meant for providing relief for old backlogged cases.
Click to expand...

I cannot comment further...I am not too sure on many aspects...
However, I respect your opinion.

-rajum
 
Originally posted by vi00
Rajum,
Before I disagree with you, let me state that we are on the same side here.

Have you ever considered what will happen if the case goes to court, and BCIS claims since the matter is sub-judice, it will stop processing the case of plaintiffs, so that status-quo is maintained.
Click to expand...

They cannot do that. In fact, three of the plaintiffs have been approved while the case is going on.
 
Re: Rajiv : extension to the Naturalization injury?

Originally posted by SirZ
As a former military officer( of the armed forces of a NATO founding member country), I wanted to continue lending my personal abilities to uphold the ideals of democracy by serving with US reserves/guards. Unfortunately, US Citizenship is a requirement for commissioning as an officer. Due to the extensive delay in the green card process, (and predictable delays in the naturalization process), I am unable to do so, because of the age cut-off criteria for entry into the military.

At a time when there is continuous discussion of the overstretching of the US military, with recent coverage of statements by US lawmakers favoring the institution of the draft, this inexcusable delay by the USCIS is not only injurous to me, but also to the United States of America.
Click to expand...


Good point. Can you please send an email to rena@immigration.com if you can possibly give us an affidavit? Thanks.
 
Re: Re: Let us do another conference call

Originally posted by dsatish
When(date and time) do you want it to be scheduled ? Let's go with your preference. Those who can make it will make it.
Click to expand...


A hearing date has been fixed. I will post the details in the main forum. Stand by.
 
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