I have been reading up on the cause and effect of the name check sham that has delayed the adjudication of my I-485 AOS. After reading an article on immigration Road website (below is part of the article), I have a theory about what has been happening lately and have included suggested links to the AILF site for very useful resources if you are inclined to file a lawsuit (WOM or APA). First the article for some background:
Should I File a Writ of Mandamus (WOM) Against the USCIS?
It is a personal choice, and an expensive approach. In 2005 and 2006, people whose cases had been pending for a long time (usually more than two years) started filing WOM lawsuits to force the USCIS to make a decision, one way or another. Many saw their I-485 applications adjudicated shortly after the law suit, without ever going to court. Those success stories encourage many more, and a flood of WoM were filed later that year.
In early 2007, USCIS announced a new policy that they would no longer expedite FBI name check in response to a Writ of Mandamus. Instead, they would rather take the case to court. This may be the only choice for the USCIS, because had they left the door open, there could have been hundreds of thousands of law suits filed against them.
However, if you have a straightforward case, it has been pending for two years or more, your priority date is current, and you can afford a few thousand dollars, a Writ of Mandamus may be still worth a try even if you have to go to court with the USCIS.
Again, each case is different and you should consult a qualified immigration attorney before making an important decision like filing WOM.
Copyright © ImmigrationRoad.com
Now for the theory. I may be wrong, paranoid or maybe too much free time on my hands, but if I could request your indulgence.
I was going through the free resources provided by American Immigration Law Foundation (AILF) for people who's applications have been delayed for a long time due to the name check process, and found out that some courts have found for the plaintiff and some for the defendant. The biggest stumbling block I have concluded is the question of jurisdiction. USCIS insists that it will clear these applications in a reasonable amount of time and is not obligated to adjudicate these applications within a specified period of time and insists that nowhere does it guarantee that these applications will be adjudicated within a set number of days.
I took out my old receipt notice from the INS, dated June 2003 and read the text of the receipt notice, which goes like this:
"The above application or petition has been received. It usually takes 365 to 540 days from the date of this receipt for us to process this type of case."
The people who won the lawsuits (WOM) against USCIS were able to prove to the judge that the USCIS has delayed the applications beyond the time line promised by it. The judge then ordered USCIS to keep it's side of the bargain and process the application promptly. People started winning these WOM lawsuits. Due to the success of these earlier cases, USCIS anticipated, thousands of people would follow suit and it would have to deal with all those people waiting for their name checks to be cleared. This would mean expedited checks for thousands of applicants. This spelled a potentially huge financial expense for USCIS (as they probably pay extra for the expedited name checks to FBI). They consulted legal and came up with a unique solution. Let's send everyone a new receipt notice with no mention of anticipated time period for adjudication. Now, this real reason could not spelled out in the receipt notice. Solution? Let's just transfer all these old pending cases to other centers and send the new I-485 receipt notices. This new receipt notice will have just a generic language stating
"This is to advise you that in order to speed up processing we have transferred the above case to the following USCIS office for processing:
Texas Service Center
That office will notify you of the decision made on the application or petition."
So, now there being no end date in sight, no more WOMs.
What do you guys think? I sthis plausible? Maybe it just makes for a good story and I probably spent some good quality time cooking up theories and just generally goofing off
BTW, here are a couple of links to AILF's WOM resources.
http://www.ailf.org/lac/mandamus-jurisdiction9-24-07 PA.pdf
http://www.ailf.org/lac/clearinghouse_mandamus.shtml#relief
Should I File a Writ of Mandamus (WOM) Against the USCIS?
It is a personal choice, and an expensive approach. In 2005 and 2006, people whose cases had been pending for a long time (usually more than two years) started filing WOM lawsuits to force the USCIS to make a decision, one way or another. Many saw their I-485 applications adjudicated shortly after the law suit, without ever going to court. Those success stories encourage many more, and a flood of WoM were filed later that year.
In early 2007, USCIS announced a new policy that they would no longer expedite FBI name check in response to a Writ of Mandamus. Instead, they would rather take the case to court. This may be the only choice for the USCIS, because had they left the door open, there could have been hundreds of thousands of law suits filed against them.
However, if you have a straightforward case, it has been pending for two years or more, your priority date is current, and you can afford a few thousand dollars, a Writ of Mandamus may be still worth a try even if you have to go to court with the USCIS.
Again, each case is different and you should consult a qualified immigration attorney before making an important decision like filing WOM.
Copyright © ImmigrationRoad.com
Now for the theory. I may be wrong, paranoid or maybe too much free time on my hands, but if I could request your indulgence.
I was going through the free resources provided by American Immigration Law Foundation (AILF) for people who's applications have been delayed for a long time due to the name check process, and found out that some courts have found for the plaintiff and some for the defendant. The biggest stumbling block I have concluded is the question of jurisdiction. USCIS insists that it will clear these applications in a reasonable amount of time and is not obligated to adjudicate these applications within a specified period of time and insists that nowhere does it guarantee that these applications will be adjudicated within a set number of days.
I took out my old receipt notice from the INS, dated June 2003 and read the text of the receipt notice, which goes like this:
"The above application or petition has been received. It usually takes 365 to 540 days from the date of this receipt for us to process this type of case."
The people who won the lawsuits (WOM) against USCIS were able to prove to the judge that the USCIS has delayed the applications beyond the time line promised by it. The judge then ordered USCIS to keep it's side of the bargain and process the application promptly. People started winning these WOM lawsuits. Due to the success of these earlier cases, USCIS anticipated, thousands of people would follow suit and it would have to deal with all those people waiting for their name checks to be cleared. This would mean expedited checks for thousands of applicants. This spelled a potentially huge financial expense for USCIS (as they probably pay extra for the expedited name checks to FBI). They consulted legal and came up with a unique solution. Let's send everyone a new receipt notice with no mention of anticipated time period for adjudication. Now, this real reason could not spelled out in the receipt notice. Solution? Let's just transfer all these old pending cases to other centers and send the new I-485 receipt notices. This new receipt notice will have just a generic language stating
"This is to advise you that in order to speed up processing we have transferred the above case to the following USCIS office for processing:
Texas Service Center
That office will notify you of the decision made on the application or petition."
So, now there being no end date in sight, no more WOMs.
What do you guys think? I sthis plausible? Maybe it just makes for a good story and I probably spent some good quality time cooking up theories and just generally goofing off
BTW, here are a couple of links to AILF's WOM resources.
http://www.ailf.org/lac/mandamus-jurisdiction9-24-07 PA.pdf
http://www.ailf.org/lac/clearinghouse_mandamus.shtml#relief