***Transcript of June 3 Hearing and Further Proceedings ***

USCIS is building their case

Mr Khanna,

1. Perhaps you have already seen this, but I noticed this month that the Nebraska service center has started breaking down the 485 processing into 4 categories in their "processing dates" report on the USCIS website. This is possibly in response to your argument that since 485 cases are being reported under one category (at all 4 centers at the time) there is reason to believe that they all go through similar processing steps at that stage. USCIS will probably extend this sub-classification level reporting to other centers in the near future, to refute that point.

2. The issue of injury and proof thereof seems to be critical to this case (as it should be, one would think). Although the judge did say that he will at this time assume that there is injury, it might be helpful to build the case for future presentations before this judge. There are tons of us who have had to apply for multiple EADs, Advance Parole documents, missed employment opportunities, changed travel plans or created itenararies based on Visa stamping issues etc. We should possibly open a new thread and post all relevant details of hardships endured (not in an essay form, but to the point with dates and directly related issues).

3. In the discovery phase, I suggest we first chart the process for adjudication (as per the USCIS) and then map several sample cases against the chart to determine where the delay actually occurred and if it was as per the documented process. In other words, we should be able to ask them to show processing details about specific cases that have been pending for say over 2 years now. These sample cases should be of our choosing and not theirs since they might pull out exceptional cases where there may have been some justifiable delay. In my case for example, I did not receive my first FP notice until 16 months after applying for 485 concurrently with I140 and 3 months after the I140 was approved. Why is this inconsistent with other people who get their FP done almost right after their application is received? Why does processing differ from case to case if they have a standard procedure? What prevents approval right after FP is done AFTER I140 is approved and name and background checks are completed? I'm sure we all have some very good questions that can form the backdrop against which we enter the discovery phase.

4. I do appreciate the efforts you are making with regards to this case, although as the judge stated, nothing in Washington is likely to move fast. Not meaning to despair, but I cannot help but think that the current crop of adjustees might not benefit, but I'm sure future applicants will - either directly through procedural changes resulting from the case or indirectly due to the fact that USCIS knows that not only is the legal system inclined to believe that there in fact IS injury due to the delay, but people are also determined to now take the issue up in court.

-HereNow
 
i don't understand the why Mr Erb said they take finger prints before adjucating I140 and also name checks and then repeat the same thing for I485.. As we all know that's not the case and why didn't Rajiv contest that.

Below is the part from Erb argument.

Not only do they need to make the different standards set forth in the different categories, plus the subcategories, they also need to go through after September 11th, 2001, a series of fairly in-depth security background and name checks.There's a process in which, one, when the I-140 is applied, it is submitted with the agency. They do a name check, they run it through a database when it's logged in. When the adjudicator picks it up again to do the 140 determination, another name check is done. At the same time, fingerprints are requested of the alien even before the adjudication. That is given to the FBI and that information is run. And the same process is required regards to a name check when they adjudicate the 485. And naturally, of course, this process does not even include mistakes that can be made by plaintiffs when filing the application.
 
Dear Rajiv,

Employment-based immigration process flow:
Stage 1: Labor Certification Application: (Ranges from 10 to 24 months)
Company approves employee’s pursuit of an Employment-based Green Card.
Company attorney interviews and/or sends questionnaire to foreign national employee.
Company attorney verifies availability of position & qualifications.
Company provides detailed job description and employee’s resume.
Company attorney obtains prevailing wage for position.
Company attorney prepares Form 750 Parts A & B.
Employee signs the form 750 Part B
Company Official reviews and signs Form 750 Part A.
Company attorney prepares advertisement for position.
Company attorney places advertisements in newspapers/trade papers.
Company attorney prepares in-house postings.
Company forwards relevant resumes to attorney who prepares the results.
Company attorney prepares final labor certification application.
Company attorney files labor certification at the DOL.
Company attorney receives approved labor certification.

Stage 2: Preference Petition (Ranges from 2 to 8 months)
Company attorney prepares I-140 Petition.
Company reviews and signs the Form I-140, Immigration Petition for Alien Worker (employee)
Company attorney files I-140 Petition with the USCIS (INS).
Company attorney receives INS Approval of I-140 Petition.

Stage 3: Permanent Residence Application - Adjustment of Status in the U.S.A. (Ranges from 8 to 14 months)
Company attorney prepares and employee completes the I-485 Application to Adjust Status/Register for Permanent Residence, the G-325A, Biographical Data Form, the I-765 Application for Employment Authorization and the I-131 Application for Advanced Parole.
Company attorney files the I-485, G-325A, I-765 and I-131 Applications with INS.
Employee receives work authorization (“EAD Card”).
Employee receives Green Card.

The total process ranges from 20 to 46 months i.e., approximately 2 to 4 years.
But right now one is waiting in labor process itself for more than 2 years.

Employment based I-485 class of applicants (EB-I485 class) not only feel/felt injury and mental agony during the long waiting in I-485 process but they also undergo/underwent injuries during labor and I-140 stages. I think, legally mental agony is also a kind of injury.

Here are my questions to MR. ERB:
MR. ERB says there are 5 EB categories. Does he say these categories are only in I-485 or for the whole green card process? Everyone knows those categories are not applicable to I-485 but to the labor certification only. And so he can not claim categories will divide the I-485 class of applicants. If these categories are applicable to I-485, how and where those categories apply in the I-485 process? Can he show some proof ?

MR. ERB says I-485 can not be adjudicated until I-140 is adjudicated. I think EB-I485 class here is limited to those who got their I-140 approved and only I-485 pending. What is taking time for them to process EB-I485 class applications? He says there are different standards to meet the different categories. Are the standards not met during labor certification and I-140 approvals? He himself says the I-140 is approved based on these standards. Then the standards do not apply to processing EB-I485 class applications. So why the delay?

MR. ERB says background and name checks are the fairly in-depth process during I-140. If I-140 is approved why is that background and name checks are required again in I-485 for adjudicating I-485? How can the background change during and after I-140 approval? Does he have any proof that the background warrants to be done again in I-485? How much time INS has taken at the maximum for background and name checks, taking into account all clerical mistakes an EB-I485 class applicant might have done?

MR. ERB says the plaintiffs have no legal rights to adjudication things. Does he mean INS is not obliged to do service to the EB-I485 class applicants? Does he mean to say INS will receive processing fees but will not be bound by any law to do service for the money they received? Is it not called “unfair trade practice” by law? Does he warrant EB-I485 class applicants to go complain this to FTC? Is it not illegal to service without principles?

Learned Judge says “You can’t apply for naturalization until you have a green card. And naturalization carries with it benefits, the delay of which can not be measured:” While this proves the learned Judge understood the injury posed on EB-I485 class applicants, the “measure” should also consider the delays in labor and I-140 processes for EB-I485 class applicants because EB-I485 class applicants went through those injuries. What does MR. ERB say for this?

MR. ERB says no one lost the job due to the delay. But a lady Aram Arumugam (never mind even if she is not one of the plaintiffs) lost her husband in an accident due to the delay and eventually lost her job and life here in USA had to go back to India within a week. Is this not the maximum injury one would get due to these delays? Can we not construe this case as to decide that the I-485 delays are “unreasonable” to the extent a dependent had to leave the country within a week? What will MR. ERB say for Aram?

MR. ERB says “I am not buying his argument that that’s what the agency does” to a proof that Mr. Khanna showed for only one category of I-485 being tracked by the agency. Can MR. ERB show some proof on where those different categories exist in I-485 process and how they are tracked individually? He can not hypothetically deny buying the argument in a court, can he prove it?

----------------------------------------------
I am not an attorney. These are my personal views.
 
Why 2nd FP

A finger print never expires. If it where to expire there would have been no crime solving investigations based on finger prints. What expires is the background check report on that finger print.

I would like to know why we are called for second finger printing? Why cannot the INS take our first finger print from the database and rerun the background check again when the case is up for adjudication.

Instead INS has to send the second FP notice, then we have to get the FP done, then someone looks up the background check and then it has to go back to INS and then adjudication process begins again. Feels so stupid and waste of money and time for all.

-------------
wac-02-122
Waiting for second FP notice
First FP - oct'02
 
desi_alien said:
I would like to know why we are called for second finger printing? Why cannot the INS take our first finger print from the database and rerun the background check again when the case is up for adjudication.
Click to expand...

This one is easily answered.... they want to make sure that the "alien" is still in the country and hasn't abandoned the application. The best way to do this is to make sure the person himself goes in and does the FP again. Although this process might have been in effect even at the time of 9/11, all of us are familiar how one of the terrorists had their GC approved AFTER they died in 9/11. This is supposedly to preempt such cases, one would assume, or at least to mitigate them.

That doesn't imply that this is a necessity. Its "required" only because they have failed to adjudicate the case within the stipulated time period of 15 months which in itself is a VERY long period and should not be required if they followed FIFO and were efficient in doing so.
 
140_takes_4ever said:
Rajiv,

Going by the threory .....

....

The crux of the point made by the judge, (If it turns out, and it may very well turn out, that the application of Mr. X takes four years, the application of Mr. Y takes one year, the application of Mr. Z takes 30 days, the application of A takes six years, the application of B takes four years and three months, and that there's some rational reason for it, then I don't think you got a class action)....
Click to expand...

i guess the key is to prove the absence of a rational reason...
 
lcaNY said:
Stage 2: Preference Petition (Ranges from 2 to 8 months)
Click to expand...
Whats the criteria for you to say I-140 is 2 to 8 months. Here is my case scenario:

12/20/2002: Applied in VSC for concurrent filing (living in MD, employer in FL)
12/22/2002: Issued Notice for only I-485
03/04/2003: FP done per VSC notice
03/07/2003: Whole concurrent packet has been sent back to attorney saying case have to filed in TSC, after 110 days of filing.

Thats it, No clue.... I have not got I-140, no response for status enquiry. its been 15 months @ TSC, 19 months with stupid VSC officer ignorance.

Why the hell an officer issued notices for I-485, FP if they are not interested to process it at VSC and why the hell they kept the file for 100 days and send it back. Incapable, inefficient stupids...


lcaNY said:
Stage 3: Permanent Residence Application - Adjustment of Status in the U.S.A. (Ranges from 8 to 14 months)
Click to expand...
Show me couple who got I-485 in TSC in 14 months.

So, add an year to couple of years to your math on whole permanent residency processing which comes to approximately 4 years(min) to 6 years.
 
That was the flow advocated before 9/11.
I gave this info to Rajiv so,
1. in case the Judge needed to know what was the flow before.
2. to prove Mr. Erb was wrong trying to confuse the flow with EB1 .. EB5 when it comes to I-485 level which is the fag end of green card process.
3. injury pertains to the whole green card process not only to I-485 level because mental agony should measured including labor and I-140.

What is the flow now is a mystery and that is what the discovery is about.

sreddy88 said:
Whats the criteria for you to say I-140 is 2 to 8 months.


Show me couple who got I-485 in TSC in 14 months.

So, add an year to couple of years to your math on whole permanent residency processing which comes to approximately 4 years(min) to 6 years.
Click to expand...
 
desi_alien said:
A finger print never expires. If it where to expire there would have been no crime solving investigations based on finger prints. What expires is the background check report on that finger print.

I would like to know why we are called for second finger printing? Why cannot the INS take our first finger print from the database and rerun the background check again when the case is up for adjudication.

Instead INS has to send the second FP notice, then we have to get the FP done, then someone looks up the background check and then it has to go back to INS and then adjudication process begins again. Feels so stupid and waste of money and time for all.

-------------
wac-02-122
Waiting for second FP notice
First FP - oct'02
Click to expand...


The FP problem is known from at least 2001.

1: Let us start with the GAO report, GAO-01-488, d01488.pdf in directory new.items, "www.gao.gov", Pages 46, 47 of 120.

Page 41 GAO-01-488 INS Application Processing Timeliness
INS continues to experience processing delays associated with FBI
fingerprint check results, which expire after 15 months. However, INS has
made progress in resolving long-standing problems with the quality and
integrity of its fingerprinting process and missing fingerprints and
fingerprint check results.
The results of fingerprint checks conducted by the FBI to determine if
applicants have criminal backgrounds that make them ineligible for
immigration benefits are valid for 15 months. The expiration of the results
of FBI fingerprint checks continue to cause processing delays at INS
because a large portion of INS’ application backlog has been pending for
well over a year. INS’ valuation study (discussed on p. 27) found that as of
October 2000, about 335,000 naturalization applications and about 250,000
adjustment of status applications had been pending for at least 21 months.
The majority of these applicants’ fingerprint results would have expired
because INS’ practice was to fingerprint applicants shortly after the
application was received. Fingerprint result expirations have been
particularly problematic for adjustment of status cases, according to field
office and headquarters officials. This is because the number of
adjustment of status cases completed in fiscal year 1999 decreased as a
result of INS’ focus on reducing naturalization backlogs, and the projected
processing times grew to 47 months.
If fingerprint check results expire, INS refingerprints the applicant and
submits the fingerprints to the FBI to conduct another criminal
background check for the individual. Field office officials estimated that
this adds about 4 to 8 weeks to case processing time. In addition to
delaying case processing, expired fingerprint check results inconvenience
applicants who must go to an ASC to be fingerprinted a second time and
cause INS to incur the additional costs of retaking the fingerprints and
paying the FBI to analyze them. The fingerprints must be retaken because
neither INS nor the FBI retain them for future use. INS did not have data
on the total number of fingerprint check expirations and the additional
funds expended by INS to refingerprint applicants. However, fingerprint
expirations can be costly to INS. INS estimated that it costs about $48 for
INS to take and process fingerprints. In addition, according to an INS
official, INS must pay the FBI $16 to perform each fingerprint check.

Expired Fingerprint Results Are Problematic, but INS Has Made Progress Resolving Several Problems With Fingerprinting Expiration of Fingerprint
Check Results Delay Application Processing and Result in Additional Costs to INS..................................................................

NOTE: Neither the FBI nor USCIS store the FPs!! from 2001.....................
 
lcaNY said:
injury pertains to the whole green card process not only to I-485 level because mental agony should measured including labor and I-140.
What is the flow now is a mystery and that is what the discovery is about.
Click to expand...

Mr, Erb also says USCIS see there is no injury (no job loss)for applicants, how can he say that when citizens lost jobs, lots of companies bankrupted and lots of people left the country in the tough economy before and after 9-11.
Not just USCIS decisions but each and every decision that gets delayed in life cause injury ( at the minimum time loss in lives). GC decisions are the ones that cause most injury(with respect to time, money, job,studies, children future and even lives of family members like in Mrs.Aram Armugam case), there is injury at each and every step of GC process delays.

Howmany people are jobless and missing one-time opportunities in life, because of requirements of citizenship and permanent residency though they are capable of meeting exceptional ability. Though, there is delay at each and every step(labor, I-140 and I-485) of GC process, we cannot fight for preliminary stages of labor and I-140 as those two stages are the basis for permanent residency. So, Injury can be proved pretty much in each and every applicant life who is waiting for approvals.
 
herenow said:
This one is easily answered.... they want to make sure that the "alien" is still in the country and hasn't abandoned the application.
Click to expand...

I think it's more likely that they need to make sure the applicant did not commit new crime during the 15+ months. The problem is of course the delay they caused, and that they don't store FP's as cinta pointed out. I remember I saw a post somewhere here saying that they are considering storing FP now.

The GAO report clearly indicated that the 485 backlog started because CIS move away resources to clear naturalization backlog, and everything just spiraled out of control. This means that they did not give due deligence to process 485 cases. I wonder if this can be an argument to reveal CIS's wrong doings in our lawsuit. When customer (CIS actually call us "Customer" on their case status login page) submits his application and pay the fee up front, he expect the vendor to have reasonable resource to process his case in reasonable time. Can the vendor remove the majority of resources to do something else and put the customer in the frig, without legal liability? I think there may be laws against this practice, or there should be. CIS has done this repeatedly in the past, such as the focus on the sunset of religious worker cases in Oct. 2003, and Savadorian cases in Mar. 2004. (they may think they can throw us this kind of excuses and we would forget about it in a few months. well, I haven't) The bottom line is that they allocate too few resources for us for a long period of time and move resources as they please, and this is wrong. Even if they need to do something else, they SHOULD hire more officers with the fee we paid. Failing to do so indicates that they have seriously mismanagement, gross inefficiency, and wayward attitude in their practice.
 
Can we call it unfair trade practice?

MR. ERB says the plaintiffs have no legal rights to adjudication things. Does he mean INS is not obliged to do service to the EB-I485 class applicants? Does he mean to say INS will receive processing fees but will not be bound by any law to do service for the money they received? Is it not called “unfair trade practice” by law? Does he warrant EB-I485 class applicants to go complain this to FTC? Is it not illegal to service without principles?

jkuo44 said:
...When customer (CIS actually call us "Customer" on their case status login page) submits his application and pay the fee up front, he expect the vendor to have reasonable resource to process his case in reasonable time. Can the vendor remove the majority of resources to do something else and put the customer in the frig, without legal liability? I think there may be laws against this practice..
Click to expand...
 
Discovery

Discovery Phase -Data we can ask
I don't know whether these Questions are permissible
In Each center

1.How many I 485 cases are pending which are not being touched except for FP,Adress change which were filed
more than one year ago.Ask them Monthwise data and the reason for that.
2.Pick a month say one and half year before .In that month how many cases filed for I 485,How may cases approved,
How many cases pending without action(action means either RFE or approval),How many cases were issused RFE and Cases approved after receiving RFE,Cases not approved after receiving RFE and the reason for it.How many cases were approved which were filed after this month.

Non Cuncurrent/Cuncurrent filers I-485 (i -140 approved, I 485 pending)

1.How many cases where pending without action .. Without RFE (please get few case with least date)
2.How many cases where approved(including cuncurrent filers) after this least case ND date. Get few case with latest ND dates(ie cases whose ND is latest).
Nail them with these datas.Get some in depth answer for their inaction if the cases date range in months.

How many cases where pending which were issused RFE and RFE received by INS(please get few cases with least date when they received the Reply)
How many cases were approved after these RFE cases .


For Cuncurrent Filers I 140 pending,I 485 pending.

Same as above. Ask for No action case (files not touched) and Approved cases latest Filing date.

Please some one improve the above thoughts and fine tune it.
 
Flowchart

We should ask USCIS the flowchart of the approval process for I485. Also we should ask USCIS to provide the average time taken to process at each stage.

Also as said previously we should put number into picture. Here is an example in the xls file. I shall be more than happy to help out Mr. Khanna to analyse the result in graphical way.
 
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Docs / DISCOVERY

The following show the problem and the rest:

1: http://www.gao.gov/new.items/ Timeliness of Applications, May, 2001. backlog problem, FP problem.
d01488.pdf

2: http://www.GAO.gov/ Fees, January 2004
d04309r

3: http://news.findlaw.com/hdocs/docs/terrorism/hsa2002.pdf Homeland Security Act, Sections on Backlogs, Congressional Reports, Ombudsman

4: http://www.tcf.org/4L/4LMain.asp?SubjectID=1&ArticleId=451&TopicId=5 The Century Foundation: DHS, one year progress report. "3.immigration.pdf"

5: CRS Report on Permanent Admissions. February 2004. Numbers not met.
http://fpc.state.gov/documents/organization/31352.pdf

6: http://www.ilw.com/lawyers/articles...9-paparelli.pdf Letter showing all the memos, regulations, guidances and all.

7: http://www.nilc.org/immlawpolicy/index.htm

Immigration Records and Databases INS data accuracy (8/27/03)(PDF)

Official Crime Information Should Be Accurate In her opinion editorial, published in The Miami Herald, April 28, 2003, NILC's policy attorney Joan Friedland discusses the Justice Department's information problem.

8: http://www.ilw.com/lawyers/immigdaily/news/2004,0615-eib108.pdf

Definitions for the EAD: temporary employment, restricted SSN, exclusion from the definition of a "US worker", which includes Asylees and Refugees...

9: http://www.ccfr.org/publications/immigration/summary.html June, 2004.

The Task Force urges the administration and Congress to work together in
finalizing and enacting backlog reduction plans, including adequate
appropriations and infrastructure, in order to meet a six-month processing
standard.

10. Congressional testimonies.

Witness List = http://www.house.gov/judiciary/immi062304.htm
Prakash Khatri = http://www.house.gov/judiciary/khatri062304.htm
Elizabeth Espien Stern = http://www.house.gov/judiciary/stern062304.pdf
Paul Zulkie = http://www.house.gov/judiciary/zulkie062304.pdf
 
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Discovery

We should also ask them about the backlog at the local offices(Houston, Arlington). Employment based I485 transferred for interviews.
 
Rajiv,
As part of our discovery can we ask CIS to publish the percentage of applications that have been adjudicated with ND going back to Oct 2001? The following should be useful:

1) For each month the total number of applications received,
2) Number of applications approved.
3) Number of applications with pending security check/name check
4) Number of applications with pending Finger prints
5) Number of applications pending RFE response
6) Number of applications waiting to be picked up but otherwise are ready for adjudication.
7) Number of applications denied.

These numbers should be easy to publish (at least most of them). I am concerned that CIS is beginning to push the JIT dates just to show some progress even while leaving a large percentage of applications untouched. Such applications can get to be a significant percentage of the applications in a few months.
Can we also ask for the criteria for moving the JIT?
Also, I am positive that in a few months CIS will argue that JIT dates have been moving fast enough to prove that CIS is putting in significant effort in good faith to reduce the backlog.
Here is a thread in CSC about JIT Dates moving at breakneck speed even while there is no significant reduction in pending applications behind the JIT.
 
I-485 Published dates in various Centers

Rajiv,
In the Discovery process, please try and find out a concise explanation from USCIS as to how they determine this JIT date at various centers. My opinion is that there should at least be a 80-90% APPROVALS of all applications prior to the JIT date for it to have any meaningful sense.
Anyways whatever the logic that they use, it would be informative to understand their thinking on this issue as we see dates moving forward rapidly (e.g. CSC) but a ton of backlogged cases in the respective center that are PRIOR to the published date.
Thanks
 
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