got layed-off 3 weeks before 485 was approved.

[boatbod]

Someone earlier on some other thread mentioned that "memos" are not really laws. I wonder if items in a memo come more under "discretion" or come under "law"?

I read somewhere - probably in one of those memos describing the outcome of a court case - that whilst a USCIS memo dictates the process or procedure that USCIS IOs must follow internally, they do not have any standing when a case comes before an immigration judge, who, by definition, is not employed under the USCIS hierarchy.

Since a judge is free to adjudicate cases based upon prior legal precedent and their own reading of immigration law as defined in 8.CFR, you may find your case being approved if you can afford the time, effort and costs associated with filing an appeal.

 

[immigrateful]

Since a judge is free to adjudicate cases based upon prior legal precedent and their own reading of immigration law as defined in 8.CFR, you may find your case being approved if you can afford the time, effort and costs associated with filing an appeal.

I am just another lay person and do not have any legal expertise but the problem I see with AC21 is there has been no legal precedent so far. At some point I think the USCIS will decline an application and let the courts rule. Somebody, at some point in time on or off this board is going to be the first one to fight it in the courts (and may or may not win).

Or perhaps the USCIS will never take this to the courts because they probably know they have a weak case - this is why the supervisor asks the IO to approve the case when he comes back after that 10 minute discussion with the supervisor.

Or USCIS might wait for the right opportunity to fight a legal battle - a case that has too many red flags - (1) Did not let the USCIS know about the use of AC21 (2) Was unemployed at the time I-485 was being adjudicated (3) Other problems with the application like physical presence or CR (like my case), or DUI, etc.

Since these are employment based cases and the whole application is based upon employment, wouldn't we have an incredibly weak case if the person was jobless at the time the I-485 was being adjudicated?

 

[immigrateful]

In the case of AC21, most of it is gray, so I guess the IO must exercise more discretion than "going by the book".

I'm not sure AC21 is a gray area. The immigrant community affected by AC21 interprets it as a gray area. Their conclusions are based on the several memos that have come out since October 2000. There is more to AC21 than the memos.

 

[obajaj]

Hi immigrateful,

If there truly is more to AC21 than just the memos, where would all these laws/information be published?
The only information I was able to pull out from the USCIS website include the original AC21 law (Which does not contain any explicit information about "what if" cases or does not spell out all the details) and the 4 or 5 memos that followed (Many of them repeating information in a previous memo).

Is there any more information published somewhere?

 

[immigrateful]

Hi immigrateful,

If there truly is more to AC21 than just the memos, where would all these laws/information be published?
The only information I was able to pull out from the USCIS website include the original AC21 law (Which does not contain any explicit information about "what if" cases or does not spell out all the details) and the 4 or 5 memos that followed (Many of them repeating information in a previous memo).

Is there any more information published somewhere?

The more information is actually less . Bill S2045 of 106th congress section 106, sub-section c modifies section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) http://www.usdoj.gov/eoir/vll/legislation/S2045.pdf

So you pretty much have all the information that is out there, I think.

 

[immigrateful]

The more information is actually less . Bill S2045 of 106th congress section 106, sub-section c modifies section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) http://www.usdoj.gov/eoir/vll/legislation/S2045.pdf

Sorry, I forgot to post the memos. I've attached the 4 out of the 5 memos that I am aware of. I've also attached an AC21 court ruling that is not relevant to us but can help in understanding how these things work.