My conversation with USCIS Lawyer

[Rajiv S. Khanna]

Discussion with USCIS Counsel, Re: I-485 Delay Litigation (ImmigrationPortal.Com, et al. v. Tom Ridge, et al.)

2/5/2004
Yesterday, Attorney William Erb from the Office of Litigation, US department of Justice called me. He is authorized to speak for all the defendants in this matter. We discussed a number of issues.

He informed me that a summary of this lawsuit had been sent to several members of Congress. He mentioned that reduction of backlogs was a common sense prerequisite to immigration reform currently being considered by the White House and by Congress. We agreed that if Congress passes laws addressing the backlog issue, our lawsuit could become moot.

I suggested that we meet with USCIS to discuss immediate remedial measures that would help ameliorate problems without massive overhaul in the statutory or regulatory framework. I am not at all confident that we can work something out, but it is worth a try. Typical examples of problems that can be removed without much ado are:
Elimination of repeat EAD, Advance Parole and Fingerprinting; counting the I-485 portability from the I-485/I-140 filing rather than from the I-140 approval, etc.

So people, get together and draft a bunch of suggestions that I can present to the defendants. They might agree to meet with me after reviewing our proposal.

Regards to all. Rajiv.

PS Those who are not members of ImmigrationPortal.Com, can send me an email with their thoughts.

 

[Rajiv S. Khanna]

Re: suggestions to solve everyone's problems

Originally posted by functionalalert
I have made a list of suggestions that could immiadetely solve most issues.

1. EAD and AP issued indefinitely till revoked

2. after i-140 is 180 days old employee free to go anyhwere to do anything


3.permanent resident for all practical purposes: i propose that if the I-485 has been pending for 180 days,the person should be considered a permanent resident for all practical purposes including but not limited to access to federal aid in state tuition unemployment beneifts,right to join defense services,purhcase home,run small business etc
this can be suject to applicant passing security and medical checks and there are no exisitng grounds for inadmissibility

what i am saying is after 180 days of i-485 days if there is no rfe,then the applicant is free to do whatever he wants and the only grounds for denial of permanent residence whenver it is approved should be security or health or serious crimes etc.

what i am saying is that most applicants are aggravated due to the fact that they are constantly dependant on somehting. the dependance factor should be erased after 180 days. so what i am saying is that when 180 days of i-140 pending have passed employer cannot cancel anything and employee is a demeed permanent resident (assuming i-485 is pending 180 days) and can get acess to all benefits that a permanent resident would get. this would solve everyone's problem since the only thing pending iis a formal approval or denial but the dependence on employer same or similar job etc are what causes the frustration.

also another question: if some members of this group feel that the government action is unfair can they file seperate lawsuits challenging the action or what. I mean since we have gone so far,let us go all the way to get full justice which cannot be achieved without freedom from dependance.

to draw a simialrity which most class members may be familair is to compare us to a girl in afghanistan who was first dependant on father and brother then husband and son to do anyhting.

how long will they abuse us,they cannot bring back the time we have lost and they appear to show no remorse and there does not appear to be immediate relief. seems like this is a time delaying tactic.but since this is an election year,hopefully they may consider some immiadete relief

Bear in mind, we can lose in court. This lawsuit raises some serious issues about what the courts can and cannot do. The theory of "separation of powers" says, the three branches: legislature, judiciary and executive cannot normally intervene in each other's busness. I do not want to say too much, but if they make me an offer that takes care of most of our problems (I am making a list from your suggestions and my own), we should consider accepting. But I am not stopping the fight until we have agreed. The fight goes on.

 

[Rajiv S. Khanna]

Thanks for your input folks

The govt. is NOT in a weak position. they have some very strong arguments on their side. We need to present our demands and meet with them. If their attitude is uncompromising, we will take our chances in court. But that could take years.

If they are willing to work things out, I will present you their counter proposal, if they choose to make one. At some point, I hope AILA will provide some input. But for now, I wish to hear only the voice of the community, which you are doing here and through emails. I have noted all the common concerns.

My prposal draft will not be perfect. I know that. But i will do my best to act on your behalf as a group representative (class counsel). Not just for individual voices. So you will have to live with some compromise. But there is no way I will compromise to our prejudice even if we have to fight all the way to the Supreme Court. We lose, we lose. There are always appeals.

 

[Rajiv S. Khanna]

Originally posted by shsa
Rajeev,

As we have filed the law suit as a immigration portal community, so why not we collect the Receipt # of each community member and gave it to the BCIS/USCIS to adjucate their cases within next 2 months and we will withdraw our lawsuit.

This might be the easiest and acceptable solution to them and to us. If we ask them too much like interim GC or 2 years EAD then we are talking about infinite loop and this case will go on forever.

Just my Opinion................................................

Believe it or not, they might even agree to that. In fact, that was one of the matters discussd. But when I first started this lawsuit, my understanding was, I am acting for the whole community, not just imigrationportal.com. But if you folks want only yourself to be approved, I can let another lawyer handle that. They can take over the case. I perceive the narrower representation to be a conflict of interest. I must represent all or none.

 

[Rajiv S. Khanna]

Re: Re: Thanks for your input folks

Originally posted by brutus
Mr. Khanna,
What are the strong arguments on the govt. side?
The basis for this complaint was "the unreasonable delays in processing of Employment Based Adjustment of Status (AOS) Applications pending before all...."

If "41. Congress has clearly expressed an opinion that a reasonable time for AOS adjudications is approximately six months" wonder what those strong arguments can be?

Would it be possible for you to list a couple of examples?

I am not sure I want to list all the arguments for the govt in a public forum. Send me an email and keep the response to yourself if you are interested. Better still, wait till you see govt's response (it is likely to be a motion to dismiss).

 

[Rajiv S. Khanna]

Re: Please do not forget eligibility of citizenship

Originally posted by Awaiting approval
I know there are other more important problems to address. But the eligibility of citizenship is 5 years after the PR. So, if the INS takes 3 years to adjudicate the PR v/s the 6 months, they should consider the eligibility for citizenship 5 years and 6 months after the RD of the 485.

Thanks

I have this in mind. Thanks.

 

[Rajiv S. Khanna]

Originally posted by sotiredofwaiting
Mr. Khanna,
One more idea: ask them to allow going for AOS and CP at the same time (it was possible several years ago, wasn't it?)
At the same time, reduce the processing time of I-824 from 1 year, to say, one week? I mean, please, how long can it take to send a piece of mail from once office to another?

Thank you,
sotiredofwaiting

I will try. But 824 is certainly woth considering for them.

 

[Rajiv S. Khanna]

Re: RFE Concern

Originally posted by burns124
Rajiv,

Thanks so much for your efforts.

I wanted to reiterate my earlier point that because of the current economy many workers like me have aplied for GC but are currently working as contractors, which will not count as full time employment needed for GC adjudication.

Due to USCIS's delays beyond 6 months, we might not be able to satisfy the RFE requirements at this point.

Hence I request you to propose that as long as a person can show that he worked full time 6 months (in same occupation as shown in LC and I-140) after filing I-485, that should satisfy the Employment Verification clause of GC.

This leaves the person free to do whatever after 6 months..like say, jump into an entirely different field for employment and not be stuck to tech jobs.

I am not sure how many others are in similar situation. I hope this is a valid request that we can make.

Thanks

Good point. Thanks.

 

[Rajiv S. Khanna]

Re: Clarification on AC21 - L1A and Similar Job

Originally posted by Dream On
Thanks for the hard work.

As the holder of an L1A Visa, I would like to see this type of visa definitely (and explicitly) included in the AC21 rules. To date, an implementation plan has NOT been issued. We need to have the rules clarified ie with respect to similar job, change in location, salary etc etc. The idea of a "Temporary Green Card", which would eliminate all the restrictions mentioned above, is very appealing.

My priority would be to see ALL EB applications (specifically including L1 cases) included.

Statutorily, only some EB classes are portable. As far as I remember L-1 based GC category is portable. Remember, CIS can give only what the statutes permit. They are unlikely to even amend the regulations. But I have noted every point (including Kashmir's of course).

 

[Rajiv S. Khanna]

Here is my plan

I will present our broad areas of concern. For example, loss of job, death, children's college, citizenship, etc. Let me ask them what they will do about it. Right now, I do not know if they will meet with us. Their counsel had told me that he will strongly recommend that the govt should meet with us.

So, I think that is the way to go.

In the mean time, get everyone you know (and their depedants) to sign our petition for class counsel.

 

[Rajiv S. Khanna]

Re: one more wish

Originally posted by greenpencil
Multiple I485 cases should be allowed to file on one alien's behalf. For example, one person may have multiple approved I-140s, or one's spouse is also qualified for Adjustment by his/her own skills, the entire family should be able to apply for AOS based on all qualifications. This is especially important at this time when AOS takes forever and the result becomes unknown.

They are already allowed.

 

[Rajiv S. Khanna]

Originally posted by gogia
One suggestion I would like to add here. I'm sure Rajiv might have thought over it already....

To make our voice heard more loudly, is it possible for us to make other prominent Immigration lawyers like Sheela Murhty etc.. join us in this effort???????

I am yet to meet a lawyer who did not have their own agenda. I hope I try to be agenda-free. Anyone is welcome to join as long as they do not put themselves before the community AND do not create obstructions in my way for what I perceive to be my job.

 

[Rajiv S. Khanna]

Originally posted by gogia
The Points mentioned by Rajiv and others make perfect sense. We are suffering because of delays in GC processing. If we get rid of the "sufferings" part, it does not matter that much if the process is still slow....And the suffering part includes:

Repeated renewals of EAD, AP, FP.
Inability to work on "dissimilar" jobs and change careers.
Inability to leave "Oppressing" employers.

Well put! We need to get rid of the suffering.

 

[Rajiv S. Khanna]

Originally posted by Jharkhandi
Rajiv,

It is so kind of you to allow other lawyers to share the platform. But I am against it. See I want you to sound selfish on this point.

Gogia,

If those lawyers want to get a stage - they are no less qualified then Rajiv(no disgrace meant), but then they never took initiative. Rajiv needs to do it the way it deems suitable to him. It is pretty rotten idea to ask someone else to be given a share - just cause he/she is a lawyer. What did any other lawyer ever did for this cause? Excuse me gogia but this is asking too much. How could you possibly ask something like this? And most of all if any other lawyer feels so strongly - even now they can fight the cause - can't they? It will be better if 10-100 such lawsuit comes from different good lawyers. But see no one is coming to fight it - none as far as I know.

Oh no. I do not look at it that way at all. Let me explain. This lawsuit is not a banner for our advertisement. Most lawyers, who typically run their practice as a business, would look at it that way. I do not want pettiness. I do not wish to sound like I am down on lawyers. EVERYONE has an angle. As long as they do not mess with my conducting the community business, I have no problem. Who cares about the credit. I hope my sense of self worth is defined by something more than what people think about me.

 

[Rajiv S. Khanna]

Re: To Rajiv

Originally posted by WheresMahGreen
To the list of sufferings mentioned by gogia, I would like to include the following:

First, bad experiences at other govt. agencies due to the lack of a definitive status of AOS folks. For instance, it was brought to your attention recently that another patron of this portal was given a rough treatment at the DMV in NJ (MVC).

Secondly, unlike greencard holders or US citizens who have their spouse and/or dependant children abroad, AOS candidates with families abroad are unable to enjoy the various tax benefits while they still undergo the same hardships to support a family.

Third, most European countries now require transit passengers bound to the US to obtain a transit visa which usually is priced at $40. This requirement is waived if the passengers are of US origin or a permanent resident of this country.

If you could highlight such issues to the defendants (and their defendants ), I think we may get a sympathetic jury (or a judge)!

Noted. Thanks.

 

[Rajiv S. Khanna]

I am noting it all folks

I cannot respond to each.

 

[Rajiv S. Khanna]

Re: My 2 cents

Originally posted by I140_2003
Thank you very much Mr Khanna for your efforts.

In addition to the three main points already suggested, I would suggest the following:
1) Start E-filing of I485 and address change(AR11) ASAP. This will reduce the work load of USCIS by a great deal. Currently we need to fill out AR11 and also call the USCIS and still it takes more than a month to be effective and result in lost mails etc. Also, AR11 should take care of addres change for all pending applications.

2) Publish the method USCIS uses to choose which cases to process first. I am very troubled to see some I140 cases approved within two weeks while a lot others are waiting more than a year. This will enable us to predict how long we have to wait.

3) There should provide some guarrantee on the processing time limit to justify increase in the processing fee's. I personally would not mind paying more than double for that kind of guarrantee.

4) The USCIS should provide monthly processing statistics for all kind of applications. The stats may include number of applications received during the time frame, cases touched/approved and total number of pending applications till date. This will improve visibililty and also reduce call center queries.

Thanks

Difficult to implement. I will start preparing a draft. Expect to have it done over the weekend. I think we know all the problems.

 

[Rajiv S. Khanna]

Re: INS and California DMV

Originally posted by ca-to-wa
Hello Mr. Khanna,

Another problem:

Many people on adjustment of status seem to be waiting for months just to get their driving licences from DMV becuase USCIS doesn't seem to be willing to send information to California DMV regarding a persons legal status in this country.

This is a not a major problem, but definitely another source of suffering.

Once again. Thank you very much for your efforts and for bringing on this law suite.

I already know this issue. There is a whole discussion thread on New Jersey DMV.

 

[Rajiv S. Khanna]

Re: Didnt know this thread was going on. Heres my 2c

Originally posted by Krishna02
1. Since the meeting is with USCIS/Congress, I think they need to clarify as to when they think the employement based GC petition is the 'applicant's' and not the employer ?
When can I feel that I am being given a GC because I am qualified and not because some crazy employer is supporting me (I have a Masters and 10 years of experience) Making EB1/2 scrutiny so hard, they are just making unskilled GCs easier. I found out that a housewife got GC through EB3 and I am waiting for 4 years)

2. What are the rights of the employee ? Since lot of employers are taking advantage of the employee's in many ways (pay less, threat, cannot take up promotions etc).

3. Can they follow the process of Canada and make immigration simpler. I got my Canada PR with just my Masters and 10 years (anything >4 wil do)

4. What is the rationale behind BCIS wanting repeated application to I765/131 ?

5. What is the BCIS rationale in the delay where 485 the last stage takes 2 years ? What is the requirement of the Labor/I-140 applications ? Labor + 140 takes 2 years and more.
Either they should grant PR or not. The decision is simple. CIA/FBI verification of about 6 months is meaningful. But the overall time of >4 years is meaningless.

Krishna, labor cert based green cards are a combo of your skills and the job. Changing the system would require action by Congress. CIS cannot do it. I am trying to find a solution within reach. So we can remove the suffering ASAP.

 

[Rajiv S. Khanna]

Re: Re: Petition question

Originally posted by av35
oops !! I forgot to mention the petition link I am referring to

http://boards.immigration.com/anthesys/TrackerPetition/signatoryForm.php?petId=4

No problem. See:

7. We are familiar with Attorney Khanna’s ongoing efforts prior to the litigation in this regard (available online here ), including sending repeated petitions to various government agencies. We believe that Attorney Khanna will fairly and vigorously represent the class. Accordingly, we trust and support Attorney Khanna’s representation of the class for this litigation. We understand that this representation in no way interferes with our pending I-485 representation by other attorneys.