jamesbond007
11-04 11:10 AM
Well, all the jobs you mentioned in your message now falls in Zone 4 i.e. Eb3.
Only option that person may have now is to change career altogether in the fields where desi consulting companies do not operate.
I need to read up on the new zones implementation.
But if you may, please answer this question: If one wants to change jobs within the same company to a new job that falls in the same zone as his current one, can he do that without a new LCA?
The new job is in the same building/region; just some additional responsibility and would be in a different group than the present one.
Only option that person may have now is to change career altogether in the fields where desi consulting companies do not operate.
I need to read up on the new zones implementation.
But if you may, please answer this question: If one wants to change jobs within the same company to a new job that falls in the same zone as his current one, can he do that without a new LCA?
The new job is in the same building/region; just some additional responsibility and would be in a different group than the present one.
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mchundi
01-01 02:54 PM
Good question. The bill is expected to be on the floor of the Senate and House for debate in Feb-06. Learning from S1932, it is my guess that the soonest bill could be law is 2-3 months. So we may be looking at something like April/May-06. But nothing is for sure at this time. It is possible that the debate may be dragged on till third quarter of 2006. We should start the activity to communicate with the law makers right now and continue to convey the right message if we want anything good to come out of the new bill.
The delay with S-1932 was due to other controvertial issues. As for the immigration provisions, i doubt if any law maker insisted on them being part of the bill. Most of the bickering was about oil drilling and patriot act. This time Patriot act will compete for senate time if it is not resolved by feb. Once the immigration bill is introduced, it should not take more than 2 weeks get it to vote and another week for conference committee.
My Q was even if some law is passed will the uscis wait till oct to implement any proposed changes.
I was curious as to how this works because it might be tough for me to stick with my current company for 1 1/2 years more to get portability.
Ofcourse we will try our best but somethings r not in our hands.
--MC
The delay with S-1932 was due to other controvertial issues. As for the immigration provisions, i doubt if any law maker insisted on them being part of the bill. Most of the bickering was about oil drilling and patriot act. This time Patriot act will compete for senate time if it is not resolved by feb. Once the immigration bill is introduced, it should not take more than 2 weeks get it to vote and another week for conference committee.
My Q was even if some law is passed will the uscis wait till oct to implement any proposed changes.
I was curious as to how this works because it might be tough for me to stick with my current company for 1 1/2 years more to get portability.
Ofcourse we will try our best but somethings r not in our hands.
--MC
keshtwo
07-13 01:51 PM
Jeez,
This guy has moved from an anti H1 visa platform to an anti-India platform. This is bordering on racism. And no one saying anything. Wonder what all this is leading to.
People must remember that all of them are immigrants or descendants of immigrants.
This guy has moved from an anti H1 visa platform to an anti-India platform. This is bordering on racism. And no one saying anything. Wonder what all this is leading to.
People must remember that all of them are immigrants or descendants of immigrants.
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shahuja
02-06 09:31 AM
i just called DOS. He asked for my visa type and passport number. He said "your visa has been issued in Jan. Call the New Delhi consulate and they should let you know if it would come through mail or do you need to go pick it up"
what happens next ?? how long after this stage it takes to get the visa ?? are there any other checks that could be going on ?? ONCE DOS approves are there any other agencies like FBI, KCC doing some other approvals as well ?? if you know what happens next let me know..waiting for posts..
so now i know I am not stuck due to PIMS and DOS cleared and approved my visa in Jan..what else then ??
what happens next ?? how long after this stage it takes to get the visa ?? are there any other checks that could be going on ?? ONCE DOS approves are there any other agencies like FBI, KCC doing some other approvals as well ?? if you know what happens next let me know..waiting for posts..
so now i know I am not stuck due to PIMS and DOS cleared and approved my visa in Jan..what else then ??
more...
pappu
11-19 07:55 PM
This is the reply from Attorney Murthy on a question asked on Murthy chat about filing two employment based I-485's for the same beneficiary (not the husband/wife situation).
"Generally it is safer not to file 2 separate 485s since it can confuse USCIS since they may assign two separate Alien or A numbers to the same person. This could end up delaying the person's I-485 approval down the road or create a security delay in many cases with multiple I-485s generally we recommend one case to be filed as an AOS and the other for CP if possible."
After much research on this, I tend to agree with this answer above (not the CP part though). As per my latest information from a lawyer who does multiple filings, the processing delay can be significant due to this. Looking back, wish our community had more information on this and more real examples of people who have done it. It would have helped members who were unsure if they should do multiple filings.
Anyways this thread will be useful for future I485 filers.
"Generally it is safer not to file 2 separate 485s since it can confuse USCIS since they may assign two separate Alien or A numbers to the same person. This could end up delaying the person's I-485 approval down the road or create a security delay in many cases with multiple I-485s generally we recommend one case to be filed as an AOS and the other for CP if possible."
After much research on this, I tend to agree with this answer above (not the CP part though). As per my latest information from a lawyer who does multiple filings, the processing delay can be significant due to this. Looking back, wish our community had more information on this and more real examples of people who have done it. It would have helped members who were unsure if they should do multiple filings.
Anyways this thread will be useful for future I485 filers.
mariner5555
01-15 06:29 AM
I have sent the letters today to WH and IV.
I have also sent group emails to my batchmates from my engg college asking them to join IV. I think everyone should do that - this will help IV to Increase its Memberships.
I had one more suggestion too - (this has recd less support in the past).
we need to put in a statement that many legals are not buying a house because of the uncertainity in the GC process. even the congressmen will be more patient with our cause when we mention housing.
I have also sent group emails to my batchmates from my engg college asking them to join IV. I think everyone should do that - this will help IV to Increase its Memberships.
I had one more suggestion too - (this has recd less support in the past).
we need to put in a statement that many legals are not buying a house because of the uncertainity in the GC process. even the congressmen will be more patient with our cause when we mention housing.
more...
Saralayar
03-29 03:09 PM
Dear All,
We need to expose the fraudulent EB1 filing by Indian companies! Under the circumstances, I think that this issue is much more relevant now! As such, I would once again like to share the information which I obtained about 6 weeks back from the local Congressman's office.
I was pleasantly suprised to learn that many Indians have been quietly writing about the fraudulent EB1 filing by Indian IT companies to lawmakers! I was told that the local office had received about 50 or so signed (hard copy) letters and that they had subsequently spoken to the INS office about this. It is a good thing that some conscientous Indians are quietly working behind the scenes for the welfare of the community.
Subsequently, I also made a letter on the subject and hand delivered the same the very next day, to the Congressman's office. I then also posted my letter to the Senators of my state.
I once again plead with all fellow EB Indian friends to write letters (please do not Email) about the fraudulent EB1 filings by Indian IT companies (TCS, CTS, L&T-IT, Infosys, Vetri software, et al) to your local congressman / senators. Please also visit your lawmakers to follow up. Personally, I feel that this very very important. IV is there to help us, but all of us must also play a role to get results
It is the strategy that will win the war, not always brute force! We should adopt a multi-pronged attach strategy, realising that each ever visa no. we get is important!
Spending about an hour of your time to write, print, sign and post could save many atleast 2 years of wait time. Did your realize this?
Imagine the impact of 1000s of covers getting dumped in your law makers' offices!
Even lawmaker's offices feel that the impact of printed and signed hard copies is much higher that Emails!
If we are united and focused, we can all win!
GOD bless the EB Community!!!
Can you update your profile for a better EB community statistics?
We need to expose the fraudulent EB1 filing by Indian companies! Under the circumstances, I think that this issue is much more relevant now! As such, I would once again like to share the information which I obtained about 6 weeks back from the local Congressman's office.
I was pleasantly suprised to learn that many Indians have been quietly writing about the fraudulent EB1 filing by Indian IT companies to lawmakers! I was told that the local office had received about 50 or so signed (hard copy) letters and that they had subsequently spoken to the INS office about this. It is a good thing that some conscientous Indians are quietly working behind the scenes for the welfare of the community.
Subsequently, I also made a letter on the subject and hand delivered the same the very next day, to the Congressman's office. I then also posted my letter to the Senators of my state.
I once again plead with all fellow EB Indian friends to write letters (please do not Email) about the fraudulent EB1 filings by Indian IT companies (TCS, CTS, L&T-IT, Infosys, Vetri software, et al) to your local congressman / senators. Please also visit your lawmakers to follow up. Personally, I feel that this very very important. IV is there to help us, but all of us must also play a role to get results
It is the strategy that will win the war, not always brute force! We should adopt a multi-pronged attach strategy, realising that each ever visa no. we get is important!
Spending about an hour of your time to write, print, sign and post could save many atleast 2 years of wait time. Did your realize this?
Imagine the impact of 1000s of covers getting dumped in your law makers' offices!
Even lawmaker's offices feel that the impact of printed and signed hard copies is much higher that Emails!
If we are united and focused, we can all win!
GOD bless the EB Community!!!
Can you update your profile for a better EB community statistics?
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like_watching_paint_dry
06-14 12:08 PM
How many times in this thread I have mentioned that I am getting replaced by one of these L-1B resource, I am a poor Oracle/DB developer who fortunately cannot be replaced by L-1B visa resources (as my skills is a common technical one). So once these violations impact your day to day life you look around for ways to stop this fraud. Its true that if I was a Nuero Surgeon in Phily or a Astro Scientist in Houston I wouldn't be interested in this violation :-) .... tomorrow let this scenario happen to you ... you would be first one to raise the alert.
Regarding 'getting burnt', I don't think there is bigger burn than loosing our jobs (which already is happening) and hope you know that there is something called 'anonymity'... ya lets see whos going to get 'burnt' here. We'll definetly keep you updated regarding the outcome.
I cannot help but point out a flaw in your case: You say that your technical skills is a common one. Yet you don't seem to have an issue that you have applied in EB2 - exceptional ability / advanced degree. At this time, you are likely holding a H1B status - a speciality occupation visa. Something does not add up now, does it?.
However, I'm with you on wanting to stop L1 visa abuse (and H1 visa abuse as well). There needs to be a more definitive way of knowing L1 visa is being misused to replace US citizens and green-card workers.
Regarding 'getting burnt', I don't think there is bigger burn than loosing our jobs (which already is happening) and hope you know that there is something called 'anonymity'... ya lets see whos going to get 'burnt' here. We'll definetly keep you updated regarding the outcome.
I cannot help but point out a flaw in your case: You say that your technical skills is a common one. Yet you don't seem to have an issue that you have applied in EB2 - exceptional ability / advanced degree. At this time, you are likely holding a H1B status - a speciality occupation visa. Something does not add up now, does it?.
However, I'm with you on wanting to stop L1 visa abuse (and H1 visa abuse as well). There needs to be a more definitive way of knowing L1 visa is being misused to replace US citizens and green-card workers.
more...
desi3933
06-16 03:29 PM
They should
1. not be based on client location (only visit and communicate), must work from sponser's worksite.
2. not be managed by client. Must be managed by sponser.
http://www.uscis.gov/files/pressrelease/LVisa_12_9_2004.pdf
Repeating your quote here
L-1B temporary workers can no longer work primarily at a worksite other than their petitioning employer if the work will be controlled and supervised by a different employer
I have put color coding for better understanding. Please read it again.
This is what I wrote
person on L1 status can work at client site as long as he/she is directly managed by company that has sponsored L1 visa
I hope this clears your confusion.
1. not be based on client location (only visit and communicate), must work from sponser's worksite.
2. not be managed by client. Must be managed by sponser.
http://www.uscis.gov/files/pressrelease/LVisa_12_9_2004.pdf
Repeating your quote here
L-1B temporary workers can no longer work primarily at a worksite other than their petitioning employer if the work will be controlled and supervised by a different employer
I have put color coding for better understanding. Please read it again.
This is what I wrote
person on L1 status can work at client site as long as he/she is directly managed by company that has sponsored L1 visa
I hope this clears your confusion.
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unseenguy
06-15 06:49 PM
The competitive angle did occur to me. There is no reason a business should not look for ways to cut costs. However, this is a question of fairness & legitimacy. A L1 visa person living in a low cost country and coming here temporarily on short-term assignments can make do with lower wages because he likely does not have to support a family here at the US cost of living, and L1 spouses can work. This is not fair to a H1 with same skills whose H4 spouse cannot work, and for the same reasons it is not fair to USC/GC folks. Isn't that why we currently have all this labor certification processes and DOL laws? Those laws are designed to level the playing field. It is not easy for the company to outsource entirely, so they break the law by abusing the visa. Why should we not act to stop this illegitimate corporate action?
If that does not sound reasonable, let me ask you this: Why should USCIS and law-makers even consider taking steps to address green-card backlogs, adding resources to process more cases more quickly when they can just sit there and collect fees from you for visa / EAD renewals?
Agreed on your point. But there are other discriminations at workplace such as , age, race, sex and sexual harrassment. Those who complain about it effectively terminate their careers. If you want to go , complain against this L1 misuse fine, but you are not going to get mileage, maybe some bad breath and bad publicity and eventual loss of reference & job. If your company / client has decided they do not want to persist with you, there are 101 ways they can get rid of you, legal or illegal, my suggestion is, if you were exposed,
can L1fraud hold his head high in front of his client and still ask for reference with no sense of guilt in future? If not, he has lost half the game but now wants to lose the other half in a self destructive manner.
If that does not sound reasonable, let me ask you this: Why should USCIS and law-makers even consider taking steps to address green-card backlogs, adding resources to process more cases more quickly when they can just sit there and collect fees from you for visa / EAD renewals?
Agreed on your point. But there are other discriminations at workplace such as , age, race, sex and sexual harrassment. Those who complain about it effectively terminate their careers. If you want to go , complain against this L1 misuse fine, but you are not going to get mileage, maybe some bad breath and bad publicity and eventual loss of reference & job. If your company / client has decided they do not want to persist with you, there are 101 ways they can get rid of you, legal or illegal, my suggestion is, if you were exposed,
can L1fraud hold his head high in front of his client and still ask for reference with no sense of guilt in future? If not, he has lost half the game but now wants to lose the other half in a self destructive manner.
more...
guy03062
08-20 02:43 PM
I have just upgraded my existing Vonage plan from Premium to World plan without any cost. As few guys said earlier, I remember paying $0.89 per min for India call a decade back when I was a student here - really great to experience fruits of VoIP innovation :-)
For someone who has Vonage account and want to upgrade, they can login into vonage web account, goto Billing section and click on change current plan.
For someone who has Vonage account and want to upgrade, they can login into vonage web account, goto Billing section and click on change current plan.
hot on to Google#39;s blogger.com
smisachu
07-11 11:04 AM
I agree with immi2006. We set ourselves apart by the Flower campaign indicating that we are law abiding and peaceful.
If some one can come up with a format which shows the tax dollars we have paid so far and the social security we have contributed and we can extrapolate it to encompass the total estimated number of EB immigrants. That would be a sizable number and will wake everyone up. If we distribute this to all the Senators/Congressmen and media it could have a huge impact.
Maybe all IV members can send the two figures:
Lifetime tax paid- One figure
Contribution to SS- One figure
We can put this in a presentable format with a write up and publish it. More ideas and thoughts please.
Guys,
This should not boomrang on us, let us do it with caution. Food Delivery etc can look mean.
What we can think of is Sending your tax statements for 5 years to tell them how honest we have been and how much we contributed to economy..
Sending it to local senators ?.
What dou think ?
If some one can come up with a format which shows the tax dollars we have paid so far and the social security we have contributed and we can extrapolate it to encompass the total estimated number of EB immigrants. That would be a sizable number and will wake everyone up. If we distribute this to all the Senators/Congressmen and media it could have a huge impact.
Maybe all IV members can send the two figures:
Lifetime tax paid- One figure
Contribution to SS- One figure
We can put this in a presentable format with a write up and publish it. More ideas and thoughts please.
Guys,
This should not boomrang on us, let us do it with caution. Food Delivery etc can look mean.
What we can think of is Sending your tax statements for 5 years to tell them how honest we have been and how much we contributed to economy..
Sending it to local senators ?.
What dou think ?
more...
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kaisersose
03-26 02:07 PM
This is plain stupidity. These employers should first take a good look at an EAD and a GC. As for as work authorization is concerned, both these cards provide us with the same rights. The EAD says �The person identified is authorized to work in the US for the validity of this card� where as the GC says �The person identified by the card is authorized to work and remain in the US�.
So why does the legal department come into picture here? Is it because of the expiry date associated with EAD�s? If that�s the case even a GC has got an expiration date (a later date maybe). Does that mean that an additional budget is required to hire GC holders?
I was thinking exactly like you until she educated me on this yesterday.
The problem with the EAD is you are invoking AC21. There are several possible problems here including
1. Complying with AC21 requirements of job code, 180 days after 485 RD, etc.
2. Invoking AC21 without 140 approval. This is not against the law, but is risky in case of a 140 RFE.
There are more reasons, but these ought to provide enough clarity on the problem. It is in the employer's interest to ensure that the candidate does not have any such issues; issues which will lead to termination of employment. The Recruiter cannot check DOL job codes and USCIS documents. That is the job of Legal which means $$$.
So if the hiring manager does not have a budget for these extra costs or if he has an equally good candidate who is a GC holder or a citizen, it is easier to go with him or her.
So why does the legal department come into picture here? Is it because of the expiry date associated with EAD�s? If that�s the case even a GC has got an expiration date (a later date maybe). Does that mean that an additional budget is required to hire GC holders?
I was thinking exactly like you until she educated me on this yesterday.
The problem with the EAD is you are invoking AC21. There are several possible problems here including
1. Complying with AC21 requirements of job code, 180 days after 485 RD, etc.
2. Invoking AC21 without 140 approval. This is not against the law, but is risky in case of a 140 RFE.
There are more reasons, but these ought to provide enough clarity on the problem. It is in the employer's interest to ensure that the candidate does not have any such issues; issues which will lead to termination of employment. The Recruiter cannot check DOL job codes and USCIS documents. That is the job of Legal which means $$$.
So if the hiring manager does not have a budget for these extra costs or if he has an equally good candidate who is a GC holder or a citizen, it is easier to go with him or her.
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Sandeep
01-07 12:23 PM
Here is a summary of the bills, their bill numbers and the Sections:
Sen. Chuck Hagel's Bill (Section 202 of S. 1918)
-High-tech workers who have worked in the U.S. for 3 years would be allowed to adjust to permanent resident status without regard to the annual employment-based immigrant visa cap of 140,000.
-The spouses and children of immigrant workers would also be allowed to adjust status without regard to this cap.
McCain/Kennedy Bill (Sections 601 and 602 of S. 1033)
-Increases quota on EB immigrants to 290,000 to alleviate retrogression
-Recapture unused visas between 2001 and 2005
-Increase the per country limit from 7% to 10%
Cornyn/Kyle Bill (Sections 1001 and 1002 of S. 1438)
-Recapture of the unused visas between 2001 through 2005
-Removal of diversity visa and reallocation of these. Since this is mentioned under EB, the implication seems to be reallocation to EB but am not sure.
-Increase of the country limit from 7% to 10%
It is understood that there would be a merging of these to make the final comprehensive immigration bill
Sen. Chuck Hagel's Bill (Section 202 of S. 1918)
-High-tech workers who have worked in the U.S. for 3 years would be allowed to adjust to permanent resident status without regard to the annual employment-based immigrant visa cap of 140,000.
-The spouses and children of immigrant workers would also be allowed to adjust status without regard to this cap.
McCain/Kennedy Bill (Sections 601 and 602 of S. 1033)
-Increases quota on EB immigrants to 290,000 to alleviate retrogression
-Recapture unused visas between 2001 and 2005
-Increase the per country limit from 7% to 10%
Cornyn/Kyle Bill (Sections 1001 and 1002 of S. 1438)
-Recapture of the unused visas between 2001 through 2005
-Removal of diversity visa and reallocation of these. Since this is mentioned under EB, the implication seems to be reallocation to EB but am not sure.
-Increase of the country limit from 7% to 10%
It is understood that there would be a merging of these to make the final comprehensive immigration bill
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gc_on_demand
09-16 10:09 AM
Called most of the people in the list.
Most of the time it was voice mail.
Person from Brad Sherman office mentioned that congressman was supporting the bill.
Person from Robert C. Scott office mentioned that she did know the position but the congressman has supported these kinds of bills in the past.
Thanks aadimanav. Other please call.
Most of the time it was voice mail.
Person from Brad Sherman office mentioned that congressman was supporting the bill.
Person from Robert C. Scott office mentioned that she did know the position but the congressman has supported these kinds of bills in the past.
Thanks aadimanav. Other please call.
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patiently_waiting
09-03 01:44 PM
Hi,
If any one is interested in signing and needs referral, Ping Me. I will send the referal link so that both of us will get 2 months free of service.
thanks
If any one is interested in signing and needs referral, Ping Me. I will send the referal link so that both of us will get 2 months free of service.
thanks
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desi3933
01-30 10:03 AM
Hmmm - not sure because, if the job requires that someone must have security clearance - the job must clearly mention that someone with security clearance is needed. What is the point in hiring a citizen without security clearance (unless they want you to get clearance aftewr hiring)
Non discriminatory postings look like this
(1) Authorized to work in US for any employer
(2) Requires a security clearance
One cannot specifically say - I don't want EAD or GC or I want only Citizens.
Desi3933 and other knowledgeable folks out here - please write your comments. I hope I am not wrong.
There are 3 kind of jobs -
1. Jobs that require active security clearance - this kind of job is only limited to US citizen that have security clearance of that level. Yes, tehre are different levels in security clearance as well.
2. Jobs that will be in unit where everyone must be US citizen. These kind of jobs can be filled by US citizen without the need of any security clearance.
3. Jobs that are open for everyone - One must have active work authorization.
The vast majority of the jobs are of type #3. In any case, if job requires US citizen, the hiring place must be able to answer why that job is restricted to US citizens only.
_________________________
US citizen of Indian origin
Not a legal advice
Non discriminatory postings look like this
(1) Authorized to work in US for any employer
(2) Requires a security clearance
One cannot specifically say - I don't want EAD or GC or I want only Citizens.
Desi3933 and other knowledgeable folks out here - please write your comments. I hope I am not wrong.
There are 3 kind of jobs -
1. Jobs that require active security clearance - this kind of job is only limited to US citizen that have security clearance of that level. Yes, tehre are different levels in security clearance as well.
2. Jobs that will be in unit where everyone must be US citizen. These kind of jobs can be filled by US citizen without the need of any security clearance.
3. Jobs that are open for everyone - One must have active work authorization.
The vast majority of the jobs are of type #3. In any case, if job requires US citizen, the hiring place must be able to answer why that job is restricted to US citizens only.
_________________________
US citizen of Indian origin
Not a legal advice
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Libra
07-09 08:26 PM
How did he came to know about this, where as many big media heads are unaware of this........any idea?
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logiclife
06-15 02:34 PM
June 15, 2007
United States Citizenship and Immigration Services
Vermont Service Center
75 Lower Welden Street
St. Albans, VT 05479
RE: Job Letter for Mr. ______________
Dear Sir or Madam:
This is to certify that _____________ will provide Mr. __________ full-time permanent employment as a _____________ at an annual salary of $___________ upon becoming a Permanent Resident of the United States.
This letter is being issued in connection with an Application for Adjustment of Status being filed on his behalf.
Sincerely,
I think it has to be a little more than that.
The job description should be there in this letter that should match the labor cert (mostly if not exactly).
United States Citizenship and Immigration Services
Vermont Service Center
75 Lower Welden Street
St. Albans, VT 05479
RE: Job Letter for Mr. ______________
Dear Sir or Madam:
This is to certify that _____________ will provide Mr. __________ full-time permanent employment as a _____________ at an annual salary of $___________ upon becoming a Permanent Resident of the United States.
This letter is being issued in connection with an Application for Adjustment of Status being filed on his behalf.
Sincerely,
I think it has to be a little more than that.
The job description should be there in this letter that should match the labor cert (mostly if not exactly).
gcsomeday
08-22 10:40 AM
Like others have pointed out, it looks like that the numbers are being allocated in a different way from before. Does any one know of any article or discussion by a real attorney or some expert on what is going on?
USCIS may be using divide and silence tactics. One can already see the impact of EB2 being as good as current. They probably liked what they saw and are setting up to move back EB3 much more. At this rate EB3 will crawl to death. People will try to jump into EB2 and realignments/adjustments automatically will take place.All good for USCIS.
But, going back to my original question, what are the legal experts saying? Can any legal entity or any type of action force USCIS to explain what the heck is going on?
USCIS may be using divide and silence tactics. One can already see the impact of EB2 being as good as current. They probably liked what they saw and are setting up to move back EB3 much more. At this rate EB3 will crawl to death. People will try to jump into EB2 and realignments/adjustments automatically will take place.All good for USCIS.
But, going back to my original question, what are the legal experts saying? Can any legal entity or any type of action force USCIS to explain what the heck is going on?
DallasBlue
08-12 02:44 PM
http://www.ailf.org/lac/clearinghouse_mandamus.shtml
Plaintiffs' Arguments
Plaintiffs have responded to USCIS with legal arguments summarized below. The case citations provide recent examples of cases where the courts have agreed with plaintiffs' arguments. For further discussion of the elements of a successful mandamus complaint, see AILF's Practice Advisory, "Mandamus Actions: Avoiding Dismissal and Proving the Case."
1) Plaintiffs have a clear right to have their adjustment applications and visa petitions adjudicated in a timely manner.
Plaintiffs maintain that the right to adjudication is derived from USCIS's mandatory duty to process the applications and the fact that plaintiffs are the intended beneficiaries of the applications. See 8 C.F.R. 245.2(a)(5)(i) (providing that the "applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial"); Haidari v. Frazier, No. 06-3215, 2006 U.S. Dist. LEXIS 89177, *10 (D. Minn. 2006) (holding that 8 C.F.R. � 209.2 creates a nondiscretionary duty to adjudicate adjustment applications).
The plaintiffs' right to a timely adjudication, though not explicit in the regulation, is present in section 555(b) of the Administrative Procedure Act, which requires that "with due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." See Haidari, 2006 U.S. Dist. LEXIS 89177 at *11. To determine if a delay is unreasonable, courts examine the reasons for delay. For example, they look to whether USCIS asked for the FBI name check in a timely manner and whether USCIS failed to timely process the applications before requesting the name check and after receiving the information from the FBI. See Haidari, 2006 U.S. Dist. LEXIS 89177 at *16-17; Singh v. Still, No. 06-2458, 2007 U.S. Dist. LEXIS 16334, *13-14 (N.D. Cal. 2007) (reasoning that respondents failed to explain why it took two-and-a-half years to initiate a security check with the FBI, why no action was taken to follow up with the FBI until the mandamus suit was filed, and why it took so long to process plaintiff's initial fingerprints); Aboushaban v. Mueller, No. 06-1280, 2006 U.S. Dist. LEXIS 81076, *14 (N.D. Cal. 2006) ("[t]he FBI's delay in processing plaintiff's name check remains largely unexplained, and the remainder of defendants' arguments do not adequately excuse the delays plaintiff encountered.").
2) USCIS has a nondiscretionary duty to process applications and petitions.
USCIS has the discretion to grant or deny the application, but this does not bear on the nondiscretionary duty to make a decision on the application or petition. See Razaq v. Poulos, No. 06-2461, 2007 U.S. Dist. LEXIS 770, *9-10 (N.D. Cal. 2007) (reasoning that the fact that there is no specific deadline in the statute or regulation does not change the ministerial duty to process the application). In addition, INA � 242(a)(2)(B)(ii), 8 U.S.C. �1252(a)(2)(B)(ii), does not strip the court of jurisdiction to hear mandamus actions because no "decision or action" has taken place within the meaning of the statutory language. See Haidari, No. 06-3215, 2006 U.S. Dist. LEXIS 89177 at *13-14 (D. Minn. 2006) (reasoning that because plaintiffs have neither been denied nor granted relief, � 242(a)(2)(B) does not bar jurisdiction); Li Duan v. Zamberry, No. 06-1351, 2007 U.S. Dist. LEXIS 12697, *6-7 (W.D. Pa. 2007) (finding that INA � 242(a)(2)(B) does not apply because the pace of the adjudication of applications is not the type of discretionary "action" contemplated by the statute). For more information and earlier case law addressing discretionary decisions after the REAL ID Act please see AILF Practice Advisory, "Federal Court Jurisdiction Over Discretionary Decisions After REAL ID: Mandamus, Other Affirmative Suits and Petitions for Review."
3) There is no other remedy available to plaintiffs.
Plaintiffs also have argued that waiting for security checks to be completed is not an adequate remedy. The fact that plaintiffs are waiting is the exact harm plaintiffs are seeking to remedy. See Singh, No. 06-2458, 2007 U.S. Dist. LEXIS 16334 at *23-24 (N.D. Cal. 2007) ("waiting for an agency to act cannot logically be an adequate alternative to an order compelling the agency to act. . .") (citations omitted); Haidari, No. 06-3215, 2006 U.S. Dist. LEXIS 89177 at *15 (D. Minn. 2006) (reasoning that waiting is not an adequate remedy because the question is whether plaintiffs have an adequate alternative remedy to the waiting itself).
Plaintiffs' Arguments
Plaintiffs have responded to USCIS with legal arguments summarized below. The case citations provide recent examples of cases where the courts have agreed with plaintiffs' arguments. For further discussion of the elements of a successful mandamus complaint, see AILF's Practice Advisory, "Mandamus Actions: Avoiding Dismissal and Proving the Case."
1) Plaintiffs have a clear right to have their adjustment applications and visa petitions adjudicated in a timely manner.
Plaintiffs maintain that the right to adjudication is derived from USCIS's mandatory duty to process the applications and the fact that plaintiffs are the intended beneficiaries of the applications. See 8 C.F.R. 245.2(a)(5)(i) (providing that the "applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial"); Haidari v. Frazier, No. 06-3215, 2006 U.S. Dist. LEXIS 89177, *10 (D. Minn. 2006) (holding that 8 C.F.R. � 209.2 creates a nondiscretionary duty to adjudicate adjustment applications).
The plaintiffs' right to a timely adjudication, though not explicit in the regulation, is present in section 555(b) of the Administrative Procedure Act, which requires that "with due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." See Haidari, 2006 U.S. Dist. LEXIS 89177 at *11. To determine if a delay is unreasonable, courts examine the reasons for delay. For example, they look to whether USCIS asked for the FBI name check in a timely manner and whether USCIS failed to timely process the applications before requesting the name check and after receiving the information from the FBI. See Haidari, 2006 U.S. Dist. LEXIS 89177 at *16-17; Singh v. Still, No. 06-2458, 2007 U.S. Dist. LEXIS 16334, *13-14 (N.D. Cal. 2007) (reasoning that respondents failed to explain why it took two-and-a-half years to initiate a security check with the FBI, why no action was taken to follow up with the FBI until the mandamus suit was filed, and why it took so long to process plaintiff's initial fingerprints); Aboushaban v. Mueller, No. 06-1280, 2006 U.S. Dist. LEXIS 81076, *14 (N.D. Cal. 2006) ("[t]he FBI's delay in processing plaintiff's name check remains largely unexplained, and the remainder of defendants' arguments do not adequately excuse the delays plaintiff encountered.").
2) USCIS has a nondiscretionary duty to process applications and petitions.
USCIS has the discretion to grant or deny the application, but this does not bear on the nondiscretionary duty to make a decision on the application or petition. See Razaq v. Poulos, No. 06-2461, 2007 U.S. Dist. LEXIS 770, *9-10 (N.D. Cal. 2007) (reasoning that the fact that there is no specific deadline in the statute or regulation does not change the ministerial duty to process the application). In addition, INA � 242(a)(2)(B)(ii), 8 U.S.C. �1252(a)(2)(B)(ii), does not strip the court of jurisdiction to hear mandamus actions because no "decision or action" has taken place within the meaning of the statutory language. See Haidari, No. 06-3215, 2006 U.S. Dist. LEXIS 89177 at *13-14 (D. Minn. 2006) (reasoning that because plaintiffs have neither been denied nor granted relief, � 242(a)(2)(B) does not bar jurisdiction); Li Duan v. Zamberry, No. 06-1351, 2007 U.S. Dist. LEXIS 12697, *6-7 (W.D. Pa. 2007) (finding that INA � 242(a)(2)(B) does not apply because the pace of the adjudication of applications is not the type of discretionary "action" contemplated by the statute). For more information and earlier case law addressing discretionary decisions after the REAL ID Act please see AILF Practice Advisory, "Federal Court Jurisdiction Over Discretionary Decisions After REAL ID: Mandamus, Other Affirmative Suits and Petitions for Review."
3) There is no other remedy available to plaintiffs.
Plaintiffs also have argued that waiting for security checks to be completed is not an adequate remedy. The fact that plaintiffs are waiting is the exact harm plaintiffs are seeking to remedy. See Singh, No. 06-2458, 2007 U.S. Dist. LEXIS 16334 at *23-24 (N.D. Cal. 2007) ("waiting for an agency to act cannot logically be an adequate alternative to an order compelling the agency to act. . .") (citations omitted); Haidari, No. 06-3215, 2006 U.S. Dist. LEXIS 89177 at *15 (D. Minn. 2006) (reasoning that waiting is not an adequate remedy because the question is whether plaintiffs have an adequate alternative remedy to the waiting itself).
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