*******Here is What Happened at the 3 June Hearing*****

[markandeyulu]

Rajiv,

""I am not sure we will have a cause of action. If they are acting under the authority of law, usually not much can be done.""

you tried your best! no worries.

 

[cosmos]

Sorry if I seem to be asking a trivial question (or if the question is already asked and answered in another thread). If so, please send me a PM with a link. Thanks.

“Whether or not the delay in adjudicating employment based AOS applications is in violation of law” – from the final reply to the defendants’ opposition

There is no question that the members have suffered serious injury which can be easily proved. But is there a law that says USCIS has to process applications within a certain timeframe? And what is the timeframe? If this is not defined anywhere, how can one prove violation of law?

“The USCIS further notes that its procedures were inefficient and caused unnecessary delay” – from the final reply to the defendants’ opposition

Is inefficiency resulting in unnecessary delay a violation of law?

Of course, I understand that is what the case is all about.

Anyway, here are the things I would like to find out in the discovery phase.

1. Define what is a “clean” 485 application? How long does it take for an officer to adjudicate such a case?
2. What are some common examples of not “clean” applications? Is there a common rules/policy book that is used consistently across all service centers? If yes, let us ask to see that. If no, why not?
3. How many cases are assigned to an officer at any time? Is there a deadline to finish the cases within a certain period of time? Can we get a breakup of how many cases have been assigned to each of the officers? It shouldn’t be too difficult since they didn’t have more than 100 people across all service centers?
4. How about getting video of the file cabinet room where they keep the case files? What is the order in which they take files from there and assign to officers?
5. Are files removed from there for whatever reason and put back before adjudication?
6. What is the case file flow once it is received by USCIS to the time a case is adjudicated?
7. How do they update the “Last updated date” field in the online case tracker database?
8. I-485 application is for AOS (adjustment of status). Is requesting additional information (RFE) about employer’s ability to pay legal? I thought that question has been resolved when I-140 is approved and should not have to be proved again during 485-stage.
9. What is considered a reasonable timeframe for FBI checks (FP and/or name checks)? There may be an element of discrimination here. Some people have apparently waited for over 12 months for FBI checks to finish while others get it in a day. Can we ask for proof of number of FP/name checks are sent to FBI and the response times from FBI. For example, USCIS requested 1000 FP checks every month and FBI responded to 50% of the applications in 2 days, 25% of the applications in 7 days, and the rest in 30 days. A clearer understanding of this process would be helpful.
10. How does FBI respond? Is it an email or something else? How does a FBI response after FP/name check review trigger an activity in USCIS?
11. How is USCIS using application fees collected from I-485 applications? If they diverted it, I would think that would be violation of some law.
12. How is USCIS using the money appropriated by the Congress (in FY2002, FY2003, FY2004) for backlog reduction? If they diverted it, I would think that would be violation of law.
13. How many employees/contractors are assigned to the employment based 485 applications? And other applications? How many employees/contractors are assigned to Customer Service?
14. When will USCIS realize that we are not a bunch of idiots? Sorry, couldn’t resist.

Rajiv, Good luck with the discovery phase and let us hope this phase can be concluded sooner than later.

 

[Edison]

Subject : Conference - 06/06/2004(Sunday) 2pm EDT (11am PDT)

Subject : Conference - 06/06/2004(Sunday) 2pm EDT (11am PDT)

Dial-in Number: 641- 497-7400
Access code: 706451#

Agenda:
I-485 litigation and related issues - Update from Attorney Rajiv S. Khanna

 

[amrcn_attd]

Sorry if I seem to be asking a trivial question (or if the question is already asked and answered in another thread). If so, please send me a PM with a link. Thanks.

“Whether or not the delay in adjudicating employment based AOS applications is in violation of law” – from the final reply to the defendants’ opposition

There is no question that the members have suffered serious injury which can be easily proved. But is there a law that says USCIS has to process applications within a certain timeframe? And what is the timeframe? If this is not defined anywhere, how can one prove violation of law?

“The USCIS further notes that its procedures were inefficient and caused unnecessary delay” – from the final reply to the defendants’ opposition

Is inefficiency resulting in unnecessary delay a violation of law?

Of course, I understand that is what the case is all about.

Anyway, here are the things I would like to find out in the discovery phase.

1. Define what is a “clean” 485 application? How long does it take for an officer to adjudicate such a case?
2. What are some common examples of not “clean” applications? Is there a common rules/policy book that is used consistently across all service centers? If yes, let us ask to see that. If no, why not?
3. How many cases are assigned to an officer at any time? Is there a deadline to finish the cases within a certain period of time? Can we get a breakup of how many cases have been assigned to each of the officers? It shouldn’t be too difficult since they didn’t have more than 100 people across all service centers?
4. How about getting video of the file cabinet room where they keep the case files? What is the order in which they take files from there and assign to officers?
5. Are files removed from there for whatever reason and put back before adjudication?
6. What is the case file flow once it is received by USCIS to the time a case is adjudicated?
7. How do they update the “Last updated date” field in the online case tracker database?
8. I-485 application is for AOS (adjustment of status). Is requesting additional information (RFE) about employer’s ability to pay legal? I thought that question has been resolved when I-140 is approved and should not have to be proved again during 485-stage.
9. What is considered a reasonable timeframe for FBI checks (FP and/or name checks)? There may be an element of discrimination here. Some people have apparently waited for over 12 months for FBI checks to finish while others get it in a day. Can we ask for proof of number of FP/name checks are sent to FBI and the response times from FBI. For example, USCIS requested 1000 FP checks every month and FBI responded to 50% of the applications in 2 days, 25% of the applications in 7 days, and the rest in 30 days. A clearer understanding of this process would be helpful.
10. How does FBI respond? Is it an email or something else? How does a FBI response after FP/name check review trigger an activity in USCIS?
11. How is USCIS using application fees collected from I-485 applications? If they diverted it, I would think that would be violation of some law.
12. How is USCIS using the money appropriated by the Congress (in FY2002, FY2003, FY2004) for backlog reduction? If they diverted it, I would think that would be violation of law.
13. How many employees/contractors are assigned to the employment based 485 applications? And other applications? How many employees/contractors are assigned to Customer Service?
14. When will USCIS realize that we are not a bunch of idiots? Sorry, couldn’t resist.

Rajiv, Good luck with the discovery phase and let us hope this phase can be concluded sooner than later.

Cosmos, you have quantified the 'discovery' phase beautifully. There is less room for ambiguity.

The judge has to agree to these points, the questions are so basic that USCIS has to answer them. If they try to dodge these, their motive will be 'exposed'.

I foresee that 'security reasons' and 'case by case basis' will be used by USCIS to dodge these questions and justify the delay. If we follow your points there is virtually no escape route for USCIS.

We should also address that 'JUSTICE DELAYED IS JUSTICE DENIED'
Try to meet you in the conference with Rajiv....you should attend. We should develop foolproof strategies that call the USCIS bluff. Let us strengthen the organisation.


Rgds

 

[amrcn_attd]

Hello everyone,

First of all my sincere thanks to Rajiv!

Isnt it hard to prove that a "perfect FIFO" is possible ? think about it, it
will be very easy for USCIS to say that the cases we pick to prove they
are not doing the processing in First-In-First-Out needed special and more investigation and hence the delay for those cases. Obviously it is not us which decide who
gets aproved, and which case needs more investigation, and I am sure USCIS have humongous number of "red flags" from which they can pick and attach it to the non-FIFO processed case. ofcourse, what is a "red flag" to them may not be so for us... I think we are better off concentrating the main issue of overall ridiculous backlogs... ( I share the pain of all those applicants whose cases fell behind due to non-FIFO processnig and i dont meant to offend them)

thanks

I agree with you perfect FIFO will lead to more backlogs.

We must ensure that FI is being followed properly , FO cannot be much controlled, it is more case driven

We should concentrate on the issue of backlogs more than anything else. We can relate to other form delays, which are not security related and are also delayed. We should prove that it is a USCIS systemwide problem.

 

[hidden_dragon]

what does FI mean w/o FO? Delay is reasonable if it's within months. It shouldn't be years. FIFO doesn't have to be perfect. A few months variation is acceptable but that is not what's happening. Also the red flags should be rare in the database of million applicants.

 

[amrcn_attd]

what does FI mean w/o FO? Delay is reasonable if it's within months. It shouldn't be years. FIFO doesn't have to be perfect. A few months variation is acceptable but that is not what's happening. Also the red flags should be rare in the database of million applicants.

If we have perfect FI, we are sure that a case is being handled as of priority date. Are we sure that is the case ?

If YES, then we move to see that if FO is possible to all cases. Now, if a difficult case is going to take 6 months for the agent to handle, wouldn't it be right for the agent to take in 6 other cases on a FI basis and finish them in that period. I do not say that the difficult case should be stopped rather they should be sent to other specialist agents. ie something should be done rather than sittin on them.

I personally think that the backlog is because agents are sitting on some cases without working on other cases. How do we define a few months? Let us say 6 months(which is a reasonable time for a difficult case!). If they follow this rule then they are forced to make a decision. I think that is what we(through the litigation) are attempting to do.. but the judicial system is slow because it wants a lot of information to make informed decisions.

Your point about the 'red flags' is extremely relevant, 'red flags' should be rare...but what is not a red flag for us....may be a red flag for them.
So unless we have a list of 'red flags' to go by...we are in the dark and we could be given a lot of 'justifications' for delays.

 

[akatu]

Proof of the USCIS inefficiency

I doubt that in "discovery fase" INS will accept the strategy of questioning the technique of adjudication like which file goes where and how long does it take to move one sheet of paper from one desk to another etc. They will deny this type of information just for security reasons.
But what is really obvious, if one looks at any RFE, 90 % of information they request was sent to us by the same agency through out previous history of immigration fight, like I-94, EAD's, previous approval notices. It looks like that is all in different files and a person who is finally working on my case simply does not have access to that files ( or lazy?). Why is that? And if it is true, it's just Kafka style bureaucracy and it might be a single real cause of the delays. A lot of people have very comprehensive history of immigration. Besides they do not trust to own agency and try to follow again every step of this process from the very first visit to the US.

 

[cosmos]

I was in the conference call (lasted 1-1/2 hours) this morning. Not sure who is planning to provide the minutes. But here is what I remember:

Rajiv said the judge seemed to be taking a middle of the road approach, and not tilting one way or another. He initially wanted to rule against the class action, but after hearing Rajiv's arguments allowed "limited discovery". The arguments went on for an hour or so.

After the initial proceedings though, there does not seem to be a common understanding of what "limited discovery" means between Rajiv and the Govt. Rajiv feels that he should be allowed access to documents such as procedures, rules book, etc. The Govt feels differently and told Rajiv that they would provide a contact person who would answer questions orally. Rajiv and the Govt will have a telecon with the judge on Tuesday and clarify further. If judge does not allow access to any form of document, that would be bad news. On the other hand, if the judge does allow access to documents, there is no question that we will be on firmer footing. Rajiv has requested transcript and will make it available to us ASAP.

The key issue seems to be proving the commonality element. The Govt says that all applications are different. In our view, that is not true.

But our commonly held view of commanality is wrong. Laymen like me believe the commonality exists by the mere fact that we all submit 485 applications, apply for AP, EAD, get fingerprinted, etc. But Rajiv says that there must a commanality in a legal sense. Hopefully, we can find out something in the discovery phase.

While we are waiting, why don't we come up with a list of questions to be asked of the Govt to uncover facts in support of our case. I have started with a list in one of my previous posts. Please come up with your questions and let Rajiv choose what is relevant and is likely to advance our cause.

Rajiv also believes it is a good idea to contact the Congress. Please join one of the initiatives (Project Ocean, Project Cosmos, etc.) and make a difference.

If you have contacts in ethnic media, please provide info and we can come up with some initiatives. My own personal view is that it is better to be under the radar when it comes to mainstream media. At least for now when people are still upset about economic issues such as job losses and outsourcing.

There were lots of questions from the participants and Rajiv patiently answered all the questions. Unfortunately, since most of us were not lawyers, we were all coming up with questions that did not necessarily have a legal basis. Rajiv explained that as well. He said he would ask his team to post the details of a few cases involving "unreasonable delay" for us to read and understand how complex this case is.

Rajiv is still very confident and has several alternate plans. Rajiv and team, great work so far! We wish you all the very best and we are behind you all the way.

Regards!

 

[Stuka]

FIFO makes me laugh!!

Its almost painful to watch 2002 May CASES being approved while we are still sitting it out.

 

[kingAnil007]

Even My case Feb 2001 is still pending

Even My case Feb 2001 is still waiting in technical terms while Morons at the INS give one excuse or the other...

After 3 months I will be completing 40quarters of no-break work. Why do I need a sponsort at all since I have completted the recommended 40 quarters of contribution to the Soc security coffers

 

[ToTheBrinks]

Thanks for leading us through this!

Rajiv,
Thanks for your active role in leading this class action lawsuit. We really needed someone to help us and the next wave of immigrants. This land has been developed by immigrants. Unfortunately, the current administration is not realizing this and worse, they have forgotten their campaign promises of improving the immigration processes. I just hope that they wake up from their slumber and act rather than just "thunder"!

 

[Rajiv S. Khanna]

Lot of time will be wasted

Just another thought; I'm sure Rajiv has thought of this, but just in case:

If the main issue is class certification; why don't we just file separate class action lawsuits for eb1, eb2, eb3, etc.

I know this is more work but I imagine this would help overcome the government's argument.

A lot of time will be wasted (we filed this case in December). But we can do that.

 

[Rajiv S. Khanna]

I agree

Rajiv,
Thanks for your active role in leading this class action lawsuit. We really needed someone to help us and the next wave of immigrants. This land has been developed by immigrants. Unfortunately, the current administration is not realizing this and worse, they have forgotten their campaign promises of improving the immigration processes. I just hope that they wake up from their slumber and act rather than just "thunder"!

I wish things could be improved without us all having to go through the courts. But, if this is what it will take, we will try this route. What else can be done.

 

[BacklogBlues]

Can we add plaintiffs to the case ?

Rajiv,

Is it possible for us to add plaintiffs to the case at this point ? Here's the reason why I'm asking :

Between the members on this board and their contacts, I am sure we can come up with thousands of "legally equivalent" cases. If we petition to add say 50 or 100 plaintiffs to the case, wont the judge be forced to reconsider his stand on giving this case a class action status.

Even if we cannot change the number of plaintiffs on this one case, can we file another case with an excessively large number of petitioners and show this new case as evidence ?

I am sure there are a million legal facets to this approach which I cannot even begin to comprehend, but I feel that without class action certification the entire struggle would prove to be fruitless.

regards
-BacklogBlues

 

[Rajiv S. Khanna]

Yes we could do something like this

Rajiv,

Is it possible for us to add plaintiffs to the case at this point ? Here's the reason why I'm asking :

Between the members on this board and their contacts, I am sure we can come up with thousands of "legally equivalent" cases. If we petition to add say 50 or 100 plaintiffs to the case, wont the judge be forced to reconsider his stand on giving this case a class action status.

Even if we cannot change the number of plaintiffs on this one case, can we file another case with an excessively large number of petitioners and show this new case as evidence ?

I am sure there are a million legal facets to this approach which I cannot even begin to comprehend, but I feel that without class action certification the entire struggle would prove to be fruitless.

regards
-BacklogBlues

Give me a couple of months. Let me see where this case goes.

 

[dawnn]

Contacting Congress

I was in the conference call (lasted 1-1/2 hours) this morning. Not sure who is planning to provide the minutes. But here is what I remember:

Rajiv also believes it is a good idea to contact the Congress. Please join one of the initiatives (Project Ocean, Project Cosmos, etc.) and make a difference.

Regards!

I was on the call and here is what I think on contacting congressmen:

I am sure many of us have participated in Ocean. However, there is no tracker as to how many people have contacted already and have they heard anything from their respective offices.
If there are not enough people contacted already, we may have to take a different approach to make PR campaign more aggressively.

Should we start tracking under project ocean thread ?

 

[dsatish]

Fund collection Update

As we have mentioned in the Fund Collection FAQ document , the fund collection effort is a parallel effort to the litigation and it is more of a backup plan if our litigation effort gets bogged in delays. You can find the FAQ document by clicking on the “click here to contribute” link in my signature.
So let’s continue with the fund collection effort. We need the immigrationportal.org to express our voice effectively to the congress men and also CIS directors. So far we have collected $20,000 . To reach our target and start implementing our plan, we need atlaest another $10,000. So i request those who haven't contributed yet, to contribute at www.immigrationportal.org

 

[ZKHAN]

Any update on the telecon with INS and the judge?

 

[Rajiv S. Khanna]

Nothing yet

Any update on the telecon with INS and the judge?

Here is my email to the Govt. lawyers this morning:

"Were you able to call the Court, Bill?
We need to get moving with the discovery. If you do not have time, I will call the court tomorrow morning and have them set something up for all of us. Regards."