Important - Please do not support the AILF Class Action Lawsuit

MA_Labor, Sorry but I didn't mean to judge you. WHo am I?
MY guess is that only good that comes out of this for legal community is that USCIS inefficiency will be made public. Courts cannot change the law they can only interpret the law. SO even if they find that USCIS is at fault I don't think they have much power except to slap them with fine.
 
If a store advertises a big sale and then when the crowd shows up they say they have none left because they sold the stock to employees, they can be forced to sell you the next batch of stock at the advertised price when it arrives.

The store knew about the plan to sell to employees when they advertised the sale. The USCIS knew how many pending cases were there and how many they planned to approve in the month, so they should have either prevented DOS from publishing an "all current" bulletin, or should have got them to correct the bulletin long before the end of June.

So they are at fault for doing a bait and switch, making people waste a lot of time and money. However, I am not sure how much legal remedy can be applied. Letting more people apply now may be against the law, but maybe the court can force them to let October applicants pay the same fee that was in effect at the start of July.
 
AC21 and the need to make all categories current

Folks,

I agree with MA_Labor. The situation we would create by a legal action is a lose-lose one. Yes, we would force them (DOS & USCIS) to follow the law. And they followed the law last year. Due to categories not being current, i.e., they were over-subscribed, they had to restrict the number of visas to MPIC countries to 7% max. They followed the law and wasted 11K visas. They cannot give visas to applicants from these backlogged countries over the 7% cap unless they can make all current. That is what they have done this time, though in a somewhat clumsy manner. So, they are helping these backlogged countries and also appear not break the rules. Some might get benefit from this and some may not! It is clumsy, but litigation CANNOT force them to use all the visas and also follow the 7%cap. All of you are aware the time it takes to change the law. So, please do think deeply about the unintended consequences of your actions!

H
 
MA_Labor,

You are missing the point entirely. Your previous posts displays the movement of visa cutoff-dates w.r.t. visa bulletin dates. Thanks for posting that. Now, look at those again.
Why would you want to make everyone current. Wouldn't moving the dates 1 year ahead be more than optimistic enough. Note that they had already moved the dates in the June 2007 bulletin. I would think that moving the dates another 3-4 months ahead would have been sufficient.

I strongly believe USCIS was wrong in making everyone current (maybe there was some political stuff going on there), and hence I support a lawsuit against USCIS. Someone needs to take the blame for the mistake.

I am not saying that USCIS should revert back to the original July bulletin (I would love that personally...I am tired of waiting). All I am saying is that someone needs to be *fired* for making all dates current.
 
I do not feel that DOS/USCIS did something wrong, against any law. In a hurry to use all visa numbers (not to waste any of them) they might have violated some procedure. It is only lack of coordination between DOS and USCIS, and poor customer service in explaining what is going on. As per the DOS definition of “current”, USCIS was victimized, they forced the DOS to revert back the VB.

The maening of "current" as per DOS terminology, " if the demand for visa numbers by documentarily qualified applicants (pre-adjudicated 485s), less than supply, it is termed as current”. That means visa is available for every documentarily qualified applicants. It does not mean that visa is available for every documentarily not yet qualified applicants waiting for filing AOS. The primary function of visa bulletin is to authorize CIS and consular posts to approve documentarily qualified applicants pending with them based on cutoff dates in the VB and to accept new filings based on remaining numbers. I think USCIS has authority to limit the acceptance of new filing based on remaining visas. Though customer can apply new 485 based on VB, VB is not an instruction to customer; it is an instruction to CIS and consular post to accept the number of new filings. The customer can not enjoy the right of VB.

For example, let us assume following situation. DOS has left with 5000 EB visas for a FY. DOS is asking CIS and consular post, how many documentarily qualified applicants they have and pending for visa numbers. They reply that they have 4999 pre-adjudicated 485s. DOS thinks demand is less than supply (by 1). Then, DOS makes all category “current” as per their definitions. As per their definition “the demand for visa numbers by documentarily qualified applicants (pre-adjudicated 485s), less than supply, it is termed as current”. Their definition of “current” forgets how many people will file new 485 based on “current”. USCIS can accept only one or two new filing based on remaining 1 visa number. Based on “current”, if USCIS expects that new filings are going to be 10,000 for a single visa number, what option USCIS has? They gave 1 visa to documentarily not yet qualified applicants, pending with USCIS due to name check and informed DOS that they consumed all the visa numbers. Now DOS has sent a message that all 5000 visa numbers were made available and they left with no numbers for the FY. This is what happened

In order to overcome the procedural limitations, DOS should have not made “current”, first part, though documentarily qualified 485s are less than supply. If they do it so, it violates their definition of “current”. Also, if they do not make it to “current” (and impose some cutoff dates) to avoid tons of new filing for a single visa number, USCIS may not even approve all 4999 documentarily qualified 485s as some of them may have very latest PD. This will lead to loss of visa numbers. In either way both DOS and CIS is screwed due to the definition of “current” and procedural limitations. In this situation, what they did is the only available options. In simple term, every one (DOS, CIS, customer, & lawyers) is a victim of complex immigration law and complex procedure to implement it.
 
perm_lc wrote...

"The maening of "current" as per DOS terminology"....

Who cares about that. I think you don't understand how the VB bulletin is issued. Maybe you should read the archives. I believe I-140 approvals are used as a guidance to anticipate demand. There is a process using which USCIS anticipates demand...otherwise the system would be completely broken.

If anyone thinks there was a miscommunication between USCIS and DOL, I think they are very much mistaken. Never before has the DOL been so *outrageous* to think that to fill up 40K-60K visas you need to open up the system to make everyone current.

DOL and USCIS have historical data on number of visas used every quarter. That data is sufficient enough to make an *intelligent* (not accurate) guess on where to move the numbers too. I still believe there is more to this than we know.
 
Guys,
Sorry for barging in. I think I am on the same page as some of the guys here like perm_lc, Hanuman55, MA_Labor.
To maximize the utilization of available visa in the current financial year and approve as much as 485 already in the system from a consdierable time and found approvable, USCIS/DOS had to make VISA availability for 'CURRENT PD" . No doubt keeping 485s current for the full month of July would have benefited many of the aspirants but you have to look at the bigger picture.

If DOS/USCIS had not made dates current, considering the fact that June filers may not be ready for approval before the end of current FY, lot of VISAS would have been wasted. Either way USCIS gets brickbats.(By the way, I am not a great fan of USCIS and my PD is June 2003 EB3, India, 485 filed in the year 2004. I may not be approved in the current FY but still I feel USCIS/DOS can not be entirely blamed for this fiasco, sometimes you have look into the intentions too)
 
I completely agree with MA_Labor..while the Law suite might benefit some(temporarily), it might hurt others who are still not approved. Like me ;) AILA is always looking after themselves for example Labor Sub etc. I don't blame them. It is their livelihood. I think the lawsuit will create unnecessary panic for USCIS and DOL that they might get extra cautious and cause severe retrogression. This might actually be responsible for further delays and wastage of Visa's for no good reason.
 
spulla said:
I completely agree with MA_Labor..while the Law suite might benefit some(temporarily), it might hurt others who are still not approved. Like me ;) AILA is always looking after themselves for example Labor Sub etc. I don't blame them. It is their livelihood. I think the lawsuit will create unnecessary panic for USCIS and DOL that they might get extra cautious and cause severe retrogression. This might actually be responsible for further delays and wastage of Visa's for no good reason.
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well people who have EADs will agree with this view point ..but what about others who dont even have a EAD ..they have NOTHING to lose and hence people with late PD's will support AILA. for a change AILA and the lawyers have a chance to prove that they care about immigrants.
 
Nobody needs to care about whether Visa numbers are available or not. Nobody wanted it to be Current for July when lot of pending cases are still there.

People only care about receiving an EAD/AP instead of working in a slavery condition. Accepting these documents has nothing to do with Green cards. They can retrogress in August if they want and then process for GC's for pending people who applied long back and issue just EAD's for retrogressed people.

This is so simple. Nobody is going to be affected except a delay in processing for new applicants. Please understand that they are able to approve even 60,000 cases in just one month (after sleeping for almost 8 months) by violating their own laws like background checks. If that is possible anything should be possible. EAD/AP is equivalent to Green card for the spouse. So now everybody is losing that chance.

Filing a case against USCIS/DOS is not going to affect anyone but it will allow them to think wisely. They didn't do a simple mistake but had 18 days to think over it and July 1st was current for everyone. I expect Bush to come for rescue if case is atleast filed. We are not illegals to get a media coverage but stupid tax paying legals where nobody cares if we are silent.

Lets hope the best from AILF.
 
Madboy said:
Nobody needs to care about whether Visa numbers are available or not. Nobody wanted it to be Current for July when lot of pending cases are still there.

People only care about receiving an EAD/AP instead of working in a slavery condition. Accepting these documents has nothing to do with Green cards. They can retrogress in August if they want and then process for GC's for pending people who applied long back and issue just EAD's for retrogressed people.

This is so simple. Nobody is going to be affected except a delay in processing for new applicants. Please understand that they are able to approve even 60,000 cases in just one month (after sleeping for almost 8 months) by violating their own laws like background checks. If that is possible anything should be possible. EAD/AP is equivalent to Green card for the spouse. So now everybody is losing that chance.

Filing a case against USCIS/DOS is not going to affect anyone but it will allow them to think wisely. They didn't do a simple mistake but had 18 days to think over it and July 1st was current for everyone. I expect Bush to come for rescue if case is atleast filed. We are not illegals to get a media coverage but stupid tax paying legals where nobody cares if we are silent.

Lets hope the best from AILF.
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First, by law, they can not accept any new 485, if visa numbers are exhausted for a FY. It does not matter if they released conflicting visa bulletins. Therefore, the law suit will not survive.

Please read all the ombudsman report for last few years 4 or 5 times before posting here.

Immigrant group (and lawyers) and USCIS have completely conflicting interests. USCIS which had history of slow processing of application. Now it got severe criticism by ombudsman to approve 485 on time. They set the processing goal for 485 as 6 months. The recommendation of ombudsman is, if they can’t approve with in six months, do not accept any new applications. Ombudsman strongly recommends abolishing (the need for) interim benefits like EAD, AP, if 485 approved in 6 months. In fact, he recommended a procedure to get a green card in one day. See the flow chart in his report. Based on his reports, USCIS is going towards perfection to approve 485 on time.

On the other hand, immigrant group and lawyers have completely opposite interest. Their interest is not the GC. Their main interest is EAD, AP and AC21. They do not mind if they get GC after 10 years, as long as they can get EAD, AP and enjoy the benefit of AC21. Lawyers will enjoy continuous legal fee the as long as 485 is held for prolonged time.

USCIS can not flex their procedure just to honor the hidden agenda of the other groups. The other group wants the USCIS to continue the mistake they did past, and want to reap the benefits out of mistake of wrong Visa Bulletin (all current) on June 12.

The law suit is not the solution. All leading law firms say that there is very less chance to win the suit. The only solution is need of more EB visa numbers, to meet the demand.
 
There would be no law suit if either side did not think it could win. Law suits are more about compromise; in this case let people who filed for 485's be accepted until visas are available. How can USCIS use the precedence of wrong bulletin when they have violated that several times on either side.
USCIS has allowed acceptance of 485's when visas were unavailable and not allowed 485's when visa dates were reported as available.

Also if the law suit is not going to survive why be against it...:D



perm_lc said:
First, by law, they can not accept any new 485, if visa numbers are exhausted for a FY. It does not matter if they released conflicting visa bulletins. Therefore, the law suit will not survive.

Please read all the ombudsman report for last few years 4 or 5 times before posting here.

Immigrant group (and lawyers) and USCIS have completely conflicting interests. USCIS which had history of slow processing of application. Now it got severe criticism by ombudsman to approve 485 on time. They set the processing goal for 485 as 6 months. The recommendation of ombudsman is, if they can’t approve with in six months, do not accept any new applications. Ombudsman strongly recommends abolishing (the need for) interim benefits like EAD, AP, if 485 approved in 6 months. In fact, he recommended a procedure to get a green card in one day. See the flow chart in his report. Based on his reports, USCIS is going towards perfection to approve 485 on time.

On the other hand, immigrant group and lawyers have completely opposite interest. Their interest is not the GC. Their main interest is EAD, AP and AC21. They do not mind if they get GC after 10 years, as long as they can get EAD, AP and enjoy the benefit of AC21. Lawyers will enjoy continuous legal fee the as long as 485 is held for prolonged time.

USCIS can not flex their procedure just to honor the hidden agenda of the other groups. The other group wants the USCIS to continue the mistake they did past, and want to reap the benefits out of mistake of wrong Visa Bulletin (all current) on June 12.

The law suit is not the solution. All leading law firms say that there is very less chance to win the suit. The only solution is need of more EB visa numbers, to meet the demand.
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Signs of lawyers assuming victory already...on the lawsuit...


http://blogs.ilw.com/gregsiskind/2007/07/service-centers.html

SERVICE CENTERS HOLDING ADJUSTMENT APPLICATIONS
USCIS service centers are holding adjustment applications filed based on the initial July Visa Bulletin. Some applications received on the first business day were returned, but all applications since then are being held and not returned. One can speculate on the reason, of course. Possibly USCIS is preparing for a loss in litigation. Possibly they are preparing to cave sooner. Let the speculation begin....
 
EAD is almost a GC with little restriction for the spouse. Just because some people have EAD's already they think about starting a thread to make others feel like lawsuit is wrong. This is just because they want to get GC soon and run away. But they never want to think about people who are waiting for EAD so that their spouses can work. So we are talking about a loss of $100,000 to $150,000 per family.

The thread starter MA_Labor is a selfish guy as you can see in his signature that he already has an EAD from 2004. So he cares only about his GC. But all these days he enjoyed his EAD (benefits are pay raise, better jobs, own business, etc.,) where others couldn't get it.

When there is a lawsuit, polititians/people/media will get better attention and there is a bright chance to increase the quota per deserving country (which is currently flawed).

perm_lc said:
First, by law, they can not accept any new 485, if visa numbers are exhausted for a FY. It does not matter if they released conflicting visa bulletins.
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Laws are created by humans and not by God. Lawsuits can eventually change the laws and can be changed at any time. So now they can accept it and issue EAD's but can still retrogress if they want in August. So pending cases whose PD's will be current can be issued with a GC and remaining people can enjoy their EAD's.

Somebody has to tie a bell around the cat's neck. Who will do that? Only if someone starts complaining.
 
Nobody knows how the courts can rule. They may just say that USCIS will need to accept all applications send to them before 2nd July.
There is no down side for the litigation.
MA_Labor thinks he will get a refusal on his case. He also thinks USCIS will make categories current in October...:p This has nothing to do with USCIS and everything to do with MA_Labor.


Madboy said:
EAD is almost a GC with little restriction for the spouse. Just because some people have EAD's already they think about starting a thread to make others feel like lawsuit is wrong. This is just because they want to get GC soon and run away. But they never want to think about people who are waiting for EAD so that their spouses can work. So we are talking about a loss of $100,000 to $150,000 per family.

The thread starter MA_Labor is a selfish guy as you can see in his signature that he already has an EAD from 2004. So he cares only about his GC. But all these days he enjoyed his EAD (benefits are pay raise, better jobs, own business, etc.,) where others couldn't get it.

When there is a lawsuit, polititians/people/media will get better attention and there is a bright chance to increase the quota per deserving country (which is currently flawed).



Laws are created by humans and not by God. Lawsuits can eventually change the laws and can be changed at any time. So now they can accept it and issue EAD's but can still retrogress if they want in August. So pending cases whose PD's will be current can be issued with a GC and remaining people can enjoy their EAD's.

Somebody has to tie a bell around the cat's neck. Who will do that? Only if someone starts complaining.
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Thats right. AILF need not win to get the attention. If taken to court that would be more than sufficient to change the flawed laws. Especially quota for India & China.

But the biggest flaw I could see is July 1st was still current and July VB update started only from mid of July 2nd and not in June. Possibilities are they could have approved some cases in 2003, 2004, 2005 EB cases on Sunday July 1st.
 
Why dont you say what you have to say without picking on members. We all come here to share and help each other when stuck in this GC blackbox. This is a forum where all of us can express our thoughts (as long as we dont break the rules) and you have every right to bring your views forward. Why dont you start a thread asking folks to support the lawsuit instead giving your reasons for it. That would give it wider viewership and would be a more positive way to counter this thread. Good Luck.
nyc8300 said:
.
MA_Labor thinks he will get a refusal on his case. He also thinks USCIS will make categories current in October...:p This has nothing to do with USCIS and everything to do with MA_Labor.
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You r right! Just thought the USCIS going current in October carrot was a good bashing point. Also hate when everybody talks of general weill being with their self-interest in the background. Will keep it non-personal from now on though.

chatterjee1 said:
Why dont you say what you have to say without picking on members. We all come here to share and help each other when stuck in this GC blackbox. This is a forum where all of us can express our thoughts (as long as we dont break the rules) and you have every right to bring your views forward. Why dont you start a thread asking folks to support the lawsuit instead giving your reasons for it. That would give it wider viewership and would be a more positive way to counter this thread. Good Luck.
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Already lawyers going for feeler postings, are coing up but we,laymen (since we are laymen only)
are not able coprehend some Simple(?) things from common sense point of view.
A)O.K.Assume CIS is preparing for the debacle as these Knowledngble ! people think.
But Qs remain.
Leave the above things for any body's guess.
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U are dumb....as you rightly pointed out , that you are layman....

H1B - the rules for counting were amazingly clear and defined......the process of predicting approval percentages, looking at last 3 year stats...estimating approvals and using random selection to match up outstanding quota on the last day of receipt....

U know why H1B is fine....because the rules are clearly defined...every possible scenario was accounted for in the rulebook....for H1B quotas...

For Green Cards, the rulebook is different - it's done by DOS (and not USCIS)...and they do it based on the Visa Bulletin....
Now, in 2005 EB3 became Unavailable in mid-June or so ....why did they accept EB3 petitions from mid-Jun to end-Jun??
Similarly in 2006, EB2/Ind became Unavailable in mid-Jul or so, why did they accept EB2/Ind petitions from mid-Jul to end-Jul??
Similarly in 2007, EB became Unavailable on July 2nd...how come in this case, they refuse to accept applications?

The problem is history - 30 year history of managing Visa Bulletins -says they should accept applications...

And, ironically, this scenario is not discussed in the rulebook for visa bulletin...this is one of the gray areas...and USCIS took it's own interpretation....So, lawyers are gonna argue otherwise...
 
Well, do you know who wrote and why they wrote the rulebook for H1B so precisely?

Because back in 2004 or so, USCIS ended up giving away 75,000 (instead of 65000) H1B numbers....

Then Congresss put up an inquiry into it and USCIS came up with the new rulebook to manage H1B quota precisely...

So, the lesson learnt is - when disaster scenarios strike -that's when the remedies are clearly documented....

For Green Cards, this is the first time, it ever happened - and the rulebooks need to be re-written to handle this scenario....and for that USCIS needs to publish a regulation and request feedback from customers/lawyers etc...and incorporate into laws of the rulebook....
 
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