July 2007 Retrogression-What to do?

[1389]

July 2007 Retrogression-What to do?

What are the potential advantages and risks of filing now, vs. waiting for priority dates to become current again?

Please post what you know or understand about this issue. I was preparing to file for an employment base adjustment of status, and then yesterday, my lawyer informed me that the PD’s are no longer current but she also asked me whether I want them to file now. She didn’t explain anything except attaching the AILA notice titled, Should I File My I-485 Applications? Including the text: “Some case law indicates that where an applicant or their attorney did not apply or permitted the agency to "front desk" an application (turned the applicant away without evidence they had applied) those beneficiaries were not eligible for the remedies ordered by the court."
I then called the USCIS and they told me, I could go ahead and file but the application would be rejected, and it may take 45-days to even get the rejection notice. I would not get a receipt notice. Then, when my date actually becomes current I would have to file again, and pay the filing fees both times. I did not ask the attorney yet but I am sure in this scenario they would also charge their fees both times, and I am guessing additional fees if I want to enter the litigation. Or, do you actually not file the second time, but expect the litigation to be favorable to us, and force the USCIS to process the originally rejected cases without requiring any updated information? I don’t see this as a possibility. I think that the best we could hope to recover form a favorable litigation outcome is the cost of one of the filing fees (if you file twice), not the double attorney fees. Might there be any benefit time-wise? I would guess that it would be illegal if they later on somehow gave priority to those cases that were originally rejected on the grounds of visa numbers not being available at time of filing, whose applicants would have been fully aware of their ineligibility to file. I am sure many of you have the same dilemmas. Please comment!

I need to decide on this ASAP because of other things.

 

[TheRealCanadian]

Then, when my date actually becomes current I would have to file again, and pay the filing fees both times. I did not ask the attorney yet but I am sure in this scenario they would also charge their fees both times, and I am guessing additional fees if I want to enter the litigation.

That's pretty much the case. Really, I see the benefits from litigation only extending to someone who was about to run out of days for 245k relief, and who would benefit from having filed earlier. If you go via litigation, you certainly won't get your GC faster.

Or, do you actually not file the second time, but expect the litigation to be favorable to us, and force the USCIS to process the originally rejected cases without requiring any updated information?

I really hope your attorney doesn't want to do this, since the courts cannot force USCIS to process the original case without requiring information. They'll merely ask you to refile without charge, and then your case will be considered to have been filed on the earlier date for the purposes of 245k relief. That's about all.

If your attorneys are so interested in pursuing litigation, offer to be a test case if they absorb the extra filing fees and agree to represent you pro bono. Otherwise, I'd just wait.

 

[caliducas]

July 2007 Retrogression-What to do?

What are the potential advantages and risks of filing now, vs. waiting for priority dates to become current again?

Please post what you know or understand about this issue. I was preparing to file for an employment base adjustment of status, and then yesterday, my lawyer informed me that the PD’s are no longer current but she also asked me whether I want them to file now. She didn’t explain anything except attaching the AILA notice titled, Should I File My I-485 Applications? Including the text: “Some case law indicates that where an applicant or their attorney did not apply or permitted the agency to "front desk" an application (turned the applicant away without evidence they had applied) those beneficiaries were not eligible for the remedies ordered by the court."
I then called the USCIS and they told me, I could go ahead and file but the application would be rejected, and it may take 45-days to even get the rejection notice. I would not get a receipt notice. Then, when my date actually becomes current I would have to file again, and pay the filing fees both times. I did not ask the attorney yet but I am sure in this scenario they would also charge their fees both times, and I am guessing additional fees if I want to enter the litigation. Or, do you actually not file the second time, but expect the litigation to be favorable to us, and force the USCIS to process the originally rejected cases without requiring any updated information? I don’t see this as a possibility. I think that the best we could hope to recover form a favorable litigation outcome is the cost of one of the filing fees (if you file twice), not the double attorney fees. Might there be any benefit time-wise? I would guess that it would be illegal if they later on somehow gave priority to those cases that were originally rejected on the grounds of visa numbers not being available at time of filing, whose applicants would have been fully aware of their ineligibility to file. I am sure many of you have the same dilemmas. Please comment!

I need to decide on this ASAP because of other things.

My attorney sent my application on July 2nd. I'm taking the risk since the USCIS doesn't care about anybody's life. To me, it's a matter of principles, and if I have to become a class action plaintiff, I'll do that! A friend of mine is doing the same. The lawsuit will go through, but how long will it take? I have no clue.

This is just my opinion. I hope this helps. It's still a risk of having to pay the USCIS fees and attorney's fees twice.

 

[caliducas]

That's pretty much the case. Really, I see the benefits from litigation only extending to someone who was about to run out of days for 245k relief, and who would benefit from having filed earlier. If you go via litigation, you certainly won't get your GC faster.



I really hope your attorney doesn't want to do this, since the courts cannot force USCIS to process the original case without requiring information. They'll merely ask you to refile without charge, and then your case will be considered to have been filed on the earlier date for the purposes of 245k relief. That's about all.

If your attorneys are so interested in pursuing litigation, offer to be a test case if they absorb the extra filing fees and agree to represent you pro bono. Otherwise, I'd just wait.

We posted almost at the same time.

Good point Real Canadian!