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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abhis0
09-19 10:42 AM
Nope I gave him all info with application mailed on 11 June. They shd be able to pull info with my LS, FS, DOb and center filed.. not by date filed. Lets hope for the best. Yes he could see my checks not cashed and no info about me in the system.. may be thats why he made an email inquiry to NSC.
Hope this helps.
Rph
Did you by any chance speculated to him that application might be in TSC based on LUD on I140?
Hope this helps.
Rph
Did you by any chance speculated to him that application might be in TSC based on LUD on I140?
fatjoe
10-26 03:57 PM
Alright, Congrats Caliguy!!!
I guess the emails and updates are sent by some kind of batch processing system. I got the email at 5:15 am, do you think that uscis guys would work that early...., duh....
So cool down, you will get email soon.
If you are doubtful, call uscis one more time, and confirm that your case is approved.
I guess the emails and updates are sent by some kind of batch processing system. I got the email at 5:15 am, do you think that uscis guys would work that early...., duh....
So cool down, you will get email soon.
If you are doubtful, call uscis one more time, and confirm that your case is approved.
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gc_chahiye
06-25 12:00 PM
............Expanding on my previous posts.
One more thing.
If you decide to apply multiple 485s with each other as dependents, then file just one first. Wait. Gets its A number and put that number in the other application. This way you will cover one pitfall of multiple filing. It will not cause confusion at USCIS end.
one thing to consider though: with the number of 485 filings that are expected in July, receipts are probably going to take 8 weeks or longer to come through (just ask teh H1B filers this year). By then the PD for the other spouse would have probably retrogressed. Another thing to keep in mind...
One more thing.
If you decide to apply multiple 485s with each other as dependents, then file just one first. Wait. Gets its A number and put that number in the other application. This way you will cover one pitfall of multiple filing. It will not cause confusion at USCIS end.
one thing to consider though: with the number of 485 filings that are expected in July, receipts are probably going to take 8 weeks or longer to come through (just ask teh H1B filers this year). By then the PD for the other spouse would have probably retrogressed. Another thing to keep in mind...
more...
amsgc
08-20 11:55 PM
You got it absolutely right.
The only way out is legislation. Even this eb2 trend of approvals will end come october.
With the earlier method or the current method, EB3-I will always end up last. Vertically EB3-ROW gets the excess visas (old method), horizontally EB2-I gets the excess visas (new method). So, either way EB3-I won't benefit, the only solace being that with the current system atleast our EB2-I friends are getting their freedom faster.
For us, visa recapture or other legislative changes are the only relief.
BTW, my PD is June 2003, EB3-I
The only way out is legislation. Even this eb2 trend of approvals will end come october.
With the earlier method or the current method, EB3-I will always end up last. Vertically EB3-ROW gets the excess visas (old method), horizontally EB2-I gets the excess visas (new method). So, either way EB3-I won't benefit, the only solace being that with the current system atleast our EB2-I friends are getting their freedom faster.
For us, visa recapture or other legislative changes are the only relief.
BTW, my PD is June 2003, EB3-I
PHANI_TAVVALA
08-26 01:47 PM
When you want to join vonage or customer you will have good exp. Try to cancel or select the option to cancel and see.
I signed up online after one my friend referred me to this plan but unfortunately I have not used their referral link. I called customer service after getting my phone and told them my friend's number and they are saying that since I did not go through the right link, we both won't get the $49 until after I complete the 3 months. And I won't get it if I forget to call them after 3 months. I am wondering if I should cancel and send them back the router and order online through the referral link.
I signed up online after one my friend referred me to this plan but unfortunately I have not used their referral link. I called customer service after getting my phone and told them my friend's number and they are saying that since I did not go through the right link, we both won't get the $49 until after I complete the 3 months. And I won't get it if I forget to call them after 3 months. I am wondering if I should cancel and send them back the router and order online through the referral link.
more...
Pineapple
08-05 12:54 AM
Absolutely unbelievable-
Get this: A fingerprint check takes 24-48 hours but a name check takes upto 6 months!!! There are over 8 billion individuals on the planet, and how many have duplicate names? OK, now how many have similar names? And by the way, if you already have a fingerprint, why does name check take so long?
Reminds me of the scene in the recent Simpsons movie, where the government guy jumps up and shouts "Woo Hoo, we actually found someone we were looking for!". The bromide goes that truth is stranger than fiction, but it should be amended to "The truth is more idiotic that fiction".
Get this: A fingerprint check takes 24-48 hours but a name check takes upto 6 months!!! There are over 8 billion individuals on the planet, and how many have duplicate names? OK, now how many have similar names? And by the way, if you already have a fingerprint, why does name check take so long?
Reminds me of the scene in the recent Simpsons movie, where the government guy jumps up and shouts "Woo Hoo, we actually found someone we were looking for!". The bromide goes that truth is stranger than fiction, but it should be amended to "The truth is more idiotic that fiction".
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vtankala
01-05 12:27 PM
Yep great idea, i completely agree with other points except point#4. we should utilize facebook.com, myspace.com, change.gov to bring more awareness.
good luck for all
good luck for all
more...
nkavjs
09-20 12:37 PM
Assistant Chief
Internal Security and Investigative Operations
USCIS, 111 Massachusetts Avenue, NW
Suite 7000
Washington, DC 20529
or email: USCIS-COMPLAINT@DHS.GOV
I would appericiate, few more people can send an email.
I emailed the complaint just now.Thanks for sharing
Internal Security and Investigative Operations
USCIS, 111 Massachusetts Avenue, NW
Suite 7000
Washington, DC 20529
or email: USCIS-COMPLAINT@DHS.GOV
I would appericiate, few more people can send an email.
I emailed the complaint just now.Thanks for sharing
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QB_man
02-15 02:12 PM
Can anyone tell me if we have to wait on the DOS number all the way till we hear a voice or can we dial an extn? also is there any other number that my employers can call?
more...
amslonewolf
09-15 09:26 PM
The markup is scheduled for 9/17 Wednesday..
http://judiciary.house.gov/hearings/calendar.html
http://judiciary.house.gov/hearings/calendar.html
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indianabacklog
01-26 07:10 AM
Just got back to the US last night. Had visa interview in London on 14th January and got passport back on January 24th. Actually took six working days since there was a weekend and MLK day in the way. Twice as long as on previous occasions.
Booked my trip in October so thought I had left plenty of time for passport to come back. How wrong I was. Had to put flight back by two days and then only just made it.
Booked my trip in October so thought I had left plenty of time for passport to come back. How wrong I was. Had to put flight back by two days and then only just made it.
more...
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virginia_desi
01-31 09:07 AM
Dear Vamsi, SVK, NK, Shahuja, Abuddyz, and all eligible visa aspirants:
I just got an email from the Chennai consulate, 29th day from the interview, stating the visa was stamped today:
"Thank you for your e-mail.
Our records show that your visa was issued today, January 31. You
should be receiving your passport/visa soon.
Visa Information Unit
American Consulate General
Chennai 600006, India
Telephone: 91 44 2857 4242
Fax: 91 44 2811 2027
Website: http://chennai.usconsulate.gov"
This means there is light at the end of the tunnel. Please have faith in your abilities, and in your God. You will hear back soon.
Moral of the story: "Never use a Consulate in India for visa re-validation again."
Please learn from this story, and never again trust Consulates in India for extension purposes.
God bless you all.:)
How do you know that experience in Canada or Mexico will be any different from experience in India? It can be only better at a consulate that hasn't yet implemented PIMS, which I don't think there are any at this point. At least you are at home with family. I think the worst is to be stuck in Canada or Mexico for a month. I think the moral of the story is to use AP whenever possible.
I just got an email from the Chennai consulate, 29th day from the interview, stating the visa was stamped today:
"Thank you for your e-mail.
Our records show that your visa was issued today, January 31. You
should be receiving your passport/visa soon.
Visa Information Unit
American Consulate General
Chennai 600006, India
Telephone: 91 44 2857 4242
Fax: 91 44 2811 2027
Website: http://chennai.usconsulate.gov"
This means there is light at the end of the tunnel. Please have faith in your abilities, and in your God. You will hear back soon.
Moral of the story: "Never use a Consulate in India for visa re-validation again."
Please learn from this story, and never again trust Consulates in India for extension purposes.
God bless you all.:)
How do you know that experience in Canada or Mexico will be any different from experience in India? It can be only better at a consulate that hasn't yet implemented PIMS, which I don't think there are any at this point. At least you are at home with family. I think the worst is to be stuck in Canada or Mexico for a month. I think the moral of the story is to use AP whenever possible.
tattoo Head Of A Wild Golden Eagle In
syedn
08-16 03:01 PM
I am trying to find out if filing a DHS-7001 has actually resulted in resolution of the approval for anybody. i see a lot of folks requesting an ombudsman to intervene but wasn't sure if anybody got a positive response back -- like the case is now resolved or something.
more...
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malaGCPahije
08-08 09:41 AM
If the job required a EB2 or EB3 but EB3 was filed earlier. Is that possible?
for the same job position it should not be possible. When the employer filed in EB3, the employer must have provided all documentation necessary to justify the EB3 status. If now, the employer has to go back and indicate that the job requirement matched EB2 status, then that indicates something was not done right during the earlier application. That could right away trigger a RFE.
for the same job position it should not be possible. When the employer filed in EB3, the employer must have provided all documentation necessary to justify the EB3 status. If now, the employer has to go back and indicate that the job requirement matched EB2 status, then that indicates something was not done right during the earlier application. That could right away trigger a RFE.
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chanduv23
03-26 12:35 PM
I had a reqruiter discussing a great job opportunity and finally when it came to the status thing, it was my mistake, i said "I have EAD". She said "That's fine" and never got back to me, she said she will be in touch via email but never did that.
So this is a pattern now.
Reqruiters and HR know they can say "Sorry we do not sponser visas" so they say it without any issue but not EAD.
I am just baffled as to why are some people so fussy about EAD. Isn't EAD holders a piece of cake for the company? People with skills and eligible to work for any employer????
I am sure the hiring managers would love to bring good people on board. But unfortunately, these reqruiters and HR are creating the mess.
Looks like for reqruiters, they think they can just apply the filter to lessen their burden on collecting resumes.
So this is a pattern now.
Reqruiters and HR know they can say "Sorry we do not sponser visas" so they say it without any issue but not EAD.
I am just baffled as to why are some people so fussy about EAD. Isn't EAD holders a piece of cake for the company? People with skills and eligible to work for any employer????
I am sure the hiring managers would love to bring good people on board. But unfortunately, these reqruiters and HR are creating the mess.
Looks like for reqruiters, they think they can just apply the filter to lessen their burden on collecting resumes.
more...
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MeraNaamJoker
08-12 01:06 PM
Is USCIS following any pattern while approving I485 cases when the dates are current?.
Nothing in particular. Some patterns which were discussed here were mere coincedence.
Nothing in particular. Some patterns which were discussed here were mere coincedence.
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Apple_fruit
09-24 11:09 AM
what was your I-485 notice date?
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chintu25
09-09 04:38 PM
I know the price of success: dedication, hard work, and an unremitting devotion to the things you want to see happen.
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gsc999
09-09 04:54 PM
Good to see you back.
Thanks to all who already called. Lets keep this going.
Its a great satisfaction after you conveyed the concern for a large community
Half Million people, families effected ...
Please call all Numbers except co-sponsors ...
Find people And ask everyone else also to call ...
PS: Got your VM. inadvertantly, I lost your phone number, couldn't call back
Thanks to all who already called. Lets keep this going.
Its a great satisfaction after you conveyed the concern for a large community
Half Million people, families effected ...
Please call all Numbers except co-sponsors ...
Find people And ask everyone else also to call ...
PS: Got your VM. inadvertantly, I lost your phone number, couldn't call back
spatial
08-20 07:31 PM
Not excatly. eb3_2004 has posted the link of INA. You will find more interesting things if you read through it.
Non-descrimination rule is clearly spelled out in Section 202 (a). I assume this rule should be generally applied to all applicants, no matter which categories they are falling, unless other rules specifically provided in paragraph (2) and in sections 101(a)(27) , 201(b)(2)(A)(i) , and 203.
INA does not say to spillover unused visas first to EB2 then EB3. I assume USCIS and Department of State should treat each EB applicants equally (based on their priority dates, not based on EB categories) in according to INA act.
It is likely the misinterpretation violates the law. We need some one which more professional knowledge to read through it. Can some core member help?
if a change in interpretation is done intentionally, then USCIS admits they were allotting visas incorrectly during the previous years...if it were a public company, lawyers would be climbing over one another to file a class action suit...unfortunately all we can do is write letters, make phone calls and pray :rolleyes:
Non-descrimination rule is clearly spelled out in Section 202 (a). I assume this rule should be generally applied to all applicants, no matter which categories they are falling, unless other rules specifically provided in paragraph (2) and in sections 101(a)(27) , 201(b)(2)(A)(i) , and 203.
INA does not say to spillover unused visas first to EB2 then EB3. I assume USCIS and Department of State should treat each EB applicants equally (based on their priority dates, not based on EB categories) in according to INA act.
It is likely the misinterpretation violates the law. We need some one which more professional knowledge to read through it. Can some core member help?
if a change in interpretation is done intentionally, then USCIS admits they were allotting visas incorrectly during the previous years...if it were a public company, lawyers would be climbing over one another to file a class action suit...unfortunately all we can do is write letters, make phone calls and pray :rolleyes:
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