singhsa3
11-04 01:22 PM
Agreed...
Job Zone 4 does not automatically translate to EB3. Even though the title maybe EB-3, if the requirements exceed normal requirements for jobs in Job Zone 4 then after a (successful) business necessity audit the candidate maybe able to file in EB2.
Job Zone 4 does not automatically translate to EB3. Even though the title maybe EB-3, if the requirements exceed normal requirements for jobs in Job Zone 4 then after a (successful) business necessity audit the candidate maybe able to file in EB2.
wallpaper Microsoft Office 365 – All You
noman
01-08 01:07 PM
I have just mailed my letters, hand written! thanks for your help and support. Lots of prayers for IV.
cin45220
03-30 05:29 PM
If USCIS is providing spillover visas to EB2 in May, shouldn't the PDs of China and India (countries with most demand) have the same PDs in May VB? Doesn't this also mean that in the worst case the PD of EB2 India will be Jul 22 2006 (the current PD of China) in May VB?
-CinBoy
-CinBoy
2011 Microsoft Office 365
ash27
06-12 07:40 PM
Ganguteli, why do you keep on questioning everybody's intentions all the time. the other day, I had posted about L1 exploiting the loop to file GC in EB1 and your answer was plainly stupid and irritating - "I would have done the same thing if I had a chance"....
There is nothing wrong in exposing any kind of visa fraud...I came here on F1 10 years back and still in line for GC after getting masters from a decent school and working with major employers. What is wrong in making sure that it is FIFO....
There is nothing wrong in exposing any kind of visa fraud...I came here on F1 10 years back and still in line for GC after getting masters from a decent school and working with major employers. What is wrong in making sure that it is FIFO....
more...
alisa
04-17 07:36 PM
I think this must be publicised somehow.
Firstly, it would be tragic if the employers are alegally llowed to discriminate against AOS applicant with EAD cards. Hopefully, it is not allowed under the law.
And in that case, it should be publicised and brought up that it is illegal.
I disagree with your conclusion. The employer has the right to prefer US Citizens over another individual only if the two individuals are equally qualified. For the cases mentioned in this thread, employers have flatly refused to consider anybody on EAD. So the clause of preference to US citizens does not apply.
If you read up on section 1160 (a) or 1255a (a)(1) you will find that it includes people who have filed for AOS. It is my understanding that an EB immigrant with AOS pending is included in the "alien lawfully admitted for temporary residence under section 1160 (a) or 1255a (a)(1)" category. I am not a lawyer and could be wrong but this is my interpretation. If you are on H-1B, this does not apply. But if you have EAD and AOS pending this should apply. There is no way for an employer to distinguish between an EB immigrant with EAD and AOS pending v/s a FB immigrant with EAD and AOS pending.
Firstly, it would be tragic if the employers are alegally llowed to discriminate against AOS applicant with EAD cards. Hopefully, it is not allowed under the law.
And in that case, it should be publicised and brought up that it is illegal.
I disagree with your conclusion. The employer has the right to prefer US Citizens over another individual only if the two individuals are equally qualified. For the cases mentioned in this thread, employers have flatly refused to consider anybody on EAD. So the clause of preference to US citizens does not apply.
If you read up on section 1160 (a) or 1255a (a)(1) you will find that it includes people who have filed for AOS. It is my understanding that an EB immigrant with AOS pending is included in the "alien lawfully admitted for temporary residence under section 1160 (a) or 1255a (a)(1)" category. I am not a lawyer and could be wrong but this is my interpretation. If you are on H-1B, this does not apply. But if you have EAD and AOS pending this should apply. There is no way for an employer to distinguish between an EB immigrant with EAD and AOS pending v/s a FB immigrant with EAD and AOS pending.
Sri_1975
06-16 10:23 PM
PM me L1fraud i would like to help. Because of L1 misuse lot of people are loosing jobs.
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file485
05-24 06:17 PM
Friends
I have a labor approved in Civil/Contruction job skills with PD Oct 2003 and my date is current now. However I am currently on a IT company H1-to be specific 'Business Analyst'.
will there be a problem being now on a IT company H1 and filing for 485 with the Civil/Contruction approved labor..?
PLEASE LET ME KNOW...
I have a labor approved in Civil/Contruction job skills with PD Oct 2003 and my date is current now. However I am currently on a IT company H1-to be specific 'Business Analyst'.
will there be a problem being now on a IT company H1 and filing for 485 with the Civil/Contruction approved labor..?
PLEASE LET ME KNOW...
2010 available on Office 365?
nrk
08-16 01:24 PM
good to see approvals coming in today.
I got the CPO email today for both my wife and I.
Here is my info:
PD - Oct, 2005
NSC
Sent email to followup address on 8/6 (no response yet), sent again to scopsscata address on 8/13
Asked my congressman to inquire on 8/12
Opened SR on 8/13
Got CPO email on 8/16 (Happy Independence Day!!! Well I am sure they wanted to present this gift on 8/15, but what could they do, it was a Sunday!)
Hope and pray that the rest of the people waiting get their approvals soon!
I got the CPO email today for both my wife and I.
Here is my info:
PD - Oct, 2005
NSC
Sent email to followup address on 8/6 (no response yet), sent again to scopsscata address on 8/13
Asked my congressman to inquire on 8/12
Opened SR on 8/13
Got CPO email on 8/16 (Happy Independence Day!!! Well I am sure they wanted to present this gift on 8/15, but what could they do, it was a Sunday!)
Hope and pray that the rest of the people waiting get their approvals soon!
more...
abd
09-16 04:35 PM
Got Card Production Ordered today..
Priority Date - Nov 2005, EB2
Got an RFE last month, approved after RFE was responded..
Can u please share your RFE Details? I recetnly received RFE and preparing the documents.
Priority Date - Nov 2005, EB2
Got an RFE last month, approved after RFE was responded..
Can u please share your RFE Details? I recetnly received RFE and preparing the documents.
hair Microsoft Office 365
nixstor
07-10 07:32 PM
Saimrathi, you are posting the same message on all threads. Anyway, I am sure some of the media will pick up the story and write about it. I think there are benefits from this campaign. The name Immigration Voice is out there. We may get more members of our community to join us and participate in future campaigns and we can learn from experience on how to carry out future campaigns, protests etc. We had to speak out in some way on what happened to us with the USCIS Visa Bulletin fiasco. I believe it was worth it for all these reasons.
Sorry to jump again and pose another Q here. I have seen this happening more than once from saim*. He/She posts the same thing across three threads and whats the point of the boxes being opened by Mr Gonzalez or being received by him intact. You must be trying to play spoil sport here or just acting childish. Can you send me a PM with your number and I would like to talk with you and help you understand what we were trying to accomplish here?
Sorry to jump again and pose another Q here. I have seen this happening more than once from saim*. He/She posts the same thing across three threads and whats the point of the boxes being opened by Mr Gonzalez or being received by him intact. You must be trying to play spoil sport here or just acting childish. Can you send me a PM with your number and I would like to talk with you and help you understand what we were trying to accomplish here?
more...
funny
09-09 04:49 PM
Just finished calling 10 congressman's office. Will continue until the list is finished.
^^^ Don't let this thread slip down^^
^^^ Don't let this thread slip down^^
hot same thing in Office 365!
JazzByTheBay
09-13 09:54 PM
Admire your smiley in the face of an RFE. Rock on! :)
jazz
On Friday, I got SMS from USCIS that my case is updated and I should check status online. I checked my email. I was happy :) to see an email from USCIS and opened it excitedly with butterfly in stomach. Well it said..
"Your Case Status: Request for Evidence
On September 10, 2010, we mailed a notice requesting initial evidence in this case. Please follow the instructions on the notice to submit the evidence requested. Meanwhile, processing of this case is on hold until we either receive the evidence or the opportunity to submit it expires...........
"
Looks like I have to wait more :D
jazz
On Friday, I got SMS from USCIS that my case is updated and I should check status online. I checked my email. I was happy :) to see an email from USCIS and opened it excitedly with butterfly in stomach. Well it said..
"Your Case Status: Request for Evidence
On September 10, 2010, we mailed a notice requesting initial evidence in this case. Please follow the instructions on the notice to submit the evidence requested. Meanwhile, processing of this case is on hold until we either receive the evidence or the opportunity to submit it expires...........
"
Looks like I have to wait more :D
more...
house is kicking off Office 365
hoolahoous
08-13 07:24 PM
i got my 'decision' email on 10th. But after that nothing. No CPO email/No welcome email/ No LUD.
I am hoping that they didn't let my case 'drop through cracks'. Considering USCIS's way of working I wouldn't be surprised. Will give a week or two more.
I am hoping that they didn't let my case 'drop through cracks'. Considering USCIS's way of working I wouldn't be surprised. Will give a week or two more.
tattoo services and Office 365
kalyan
03-10 09:24 AM
Please provide a template. I will meet my local senator .
I am here for 6 years. Truely adjusted to Society and habits.
Something should be done . I will do under the leadership and guidance by IV
I am here for 6 years. Truely adjusted to Society and habits.
Something should be done . I will do under the leadership and guidance by IV
more...
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skrishna23
08-12 06:53 PM
Finally got the CPO emails/texts today morning for both me and my wife.
Came to USA in 1996 on H1. Masters (F1) from 1999-2000.
All GC applications in EB2. Nationality : India.
Applied in Mid 2001 : company (think $15B!!!) went kaput.
Applied in Mid 2003 : I quit in mid-2005 - while labor pending.
Applied Nov 22, 2005 : Approved Aug 11, 2010.
Labor applied via PERM - approved in about 4 months.
I-140 applied soon after - approved in about 4 months.
I-485 applied during the July-August 2007.
Receipt Date: Aug 16, 2007
Notice Date: Oct 1, 2007
At NSC.
Quit in mid-2008 with 485/EAD, sent AC21.
Got RFE in Sep 2008 (missed the 2008 boat).
485 LUD stuck at 10/29/2008 forever until today.
Opened a SR on Aug 5th.
Took an infopass on Aug 6th - all I could get was, "your application is with an
Immigration Officer since Aug 2nd". Nothing else!
Don't know if either had an effect.
Didn't do anything beyond the above two.
I think anything that's helpful for anyone based on dates/apps/process/procedures are all listed above. Now for a bit of something in my mind. No particular theme but general rambling....if you so indulge..please continue. Else Have a good day and happy life. And thanks IV.
It has been a long journey for sure. A lot of my friends who came to
USA in 1996 are now citizens. I have NO regrets at all. I took my own
path. Sometimes I used to think that if I had done the GC process
in 1998/1999 instead of quitting my full time job to do full time masters,
I might've gotten GC sooner. OR what if I had stuck with the 2003 application,
sure, it would've taken longer to get even the Labor cleared but I would
have gotten GC in probably 2007 - and worst case 2008. And heck, I would
have made an additional $150K (since the company got acquired by "as big
as it gets" tech company). OR what if I had chosen a very safe choice out
of masters [believe it or not, I got 12 offers back in 2000 - but then heck,
every body else got 12 offers as well]. OH btw, the full time masters ended
up costing me about $45K in credit card loans. So yeah...no point in contemplating
all the "coulda woulda shoulda"s in life.
As Nike says: Just do it.
I strongly believe it was because of the masters that I got the first 2000/2001 company, I got into the next job - and because of it to the next one and because
of that to the current one - where I am extremely happy and think
will over time come out very well off too.
At all times, I never compromised on my job. Took the job which offered
me the most challenge and allowed me to learn as much as possible while
working the smartest folks around. That I think was a great benefit - all
along - since that component of life (work) never bothered me. And was never
afraid of taking (apparent) risks either. To me they were calculated risks.
The 2002 company I joined, it was a small startup - I was employee number 20-something and was the only H1-B until we had about 150+ employees.
When I quit it was 450+ folks and was about 750+ when it was acquired.
The company I joined in 2008 (via AC21), was and still is a startup. When
I joined we were 8 employees and still now, remain lean-and-mean but
kicking some serious ass. (if I say so myself..pardon me). :)
The biggest hiccup as I think of it now was that my wife was not able
to work from 2003-2007. But the EAD in mid-2007 finally solved that
problem. Oh, I never hesitated traveling either : travel to Africa (three
countries) one year, and to Europe (three countries) one year and
Asia (two countries other than India) in one year.
Also purchased a home in 2009 (it was very tempting during the
2004-2006 times...but waited out for good).
So yeah...H1-B/EAD/AP are all handicaps - only if you convince yourself so.
A couple of times I had contemplated Canadian PR or really
moving there or to somewhere in Europe (and even Aus PR).
But pursued nothing mostly because I was lazy.
But all along my wife fully supported in everything I (we) did.
Be it change of jobs, other big decisions..what not.
So thankful to god for that.
Just a bit to go back in the way back machine.
Long ago, labor was the bottle-neck. Then 485, then something else.
Things repeat - old is new, new is old...repeat.
There were times when there was no online checking, no sms, no email notifications.
Six year h1-cap was strongly enforced. no concurrent 140/485. No one year extension of h1. No 3 year extenstions of h1 after 140. No 2 year EADs. No AC21. No priority date porting. I can go on....but a lot of stuff happened...happens.
If there is one thing I learned wrt immigration, it is do things ASAP. Never postpone anything at all. As much as possible get first in the queue.
A general piece of advice: Never reject an option you don't have. [this is more to do with folks who say, "I am only in year 1 in h1..I don't know if I need gc..let me see after 2-3 years.." - guess what einstein, it is easy to give up your gc after you get it, then to get it when you desperately need it.]
Good luck and all the best to those who are waiting.
EB2-IC seems in pretty good shape as far as I can tell.
EB3-folks need some serious legislative help - please consider contributing a fraction of what you send for your immigration-lawyers and get something done. support IV.
And finally: Be Happy!
Peace.
Came to USA in 1996 on H1. Masters (F1) from 1999-2000.
All GC applications in EB2. Nationality : India.
Applied in Mid 2001 : company (think $15B!!!) went kaput.
Applied in Mid 2003 : I quit in mid-2005 - while labor pending.
Applied Nov 22, 2005 : Approved Aug 11, 2010.
Labor applied via PERM - approved in about 4 months.
I-140 applied soon after - approved in about 4 months.
I-485 applied during the July-August 2007.
Receipt Date: Aug 16, 2007
Notice Date: Oct 1, 2007
At NSC.
Quit in mid-2008 with 485/EAD, sent AC21.
Got RFE in Sep 2008 (missed the 2008 boat).
485 LUD stuck at 10/29/2008 forever until today.
Opened a SR on Aug 5th.
Took an infopass on Aug 6th - all I could get was, "your application is with an
Immigration Officer since Aug 2nd". Nothing else!
Don't know if either had an effect.
Didn't do anything beyond the above two.
I think anything that's helpful for anyone based on dates/apps/process/procedures are all listed above. Now for a bit of something in my mind. No particular theme but general rambling....if you so indulge..please continue. Else Have a good day and happy life. And thanks IV.
It has been a long journey for sure. A lot of my friends who came to
USA in 1996 are now citizens. I have NO regrets at all. I took my own
path. Sometimes I used to think that if I had done the GC process
in 1998/1999 instead of quitting my full time job to do full time masters,
I might've gotten GC sooner. OR what if I had stuck with the 2003 application,
sure, it would've taken longer to get even the Labor cleared but I would
have gotten GC in probably 2007 - and worst case 2008. And heck, I would
have made an additional $150K (since the company got acquired by "as big
as it gets" tech company). OR what if I had chosen a very safe choice out
of masters [believe it or not, I got 12 offers back in 2000 - but then heck,
every body else got 12 offers as well]. OH btw, the full time masters ended
up costing me about $45K in credit card loans. So yeah...no point in contemplating
all the "coulda woulda shoulda"s in life.
As Nike says: Just do it.
I strongly believe it was because of the masters that I got the first 2000/2001 company, I got into the next job - and because of it to the next one and because
of that to the current one - where I am extremely happy and think
will over time come out very well off too.
At all times, I never compromised on my job. Took the job which offered
me the most challenge and allowed me to learn as much as possible while
working the smartest folks around. That I think was a great benefit - all
along - since that component of life (work) never bothered me. And was never
afraid of taking (apparent) risks either. To me they were calculated risks.
The 2002 company I joined, it was a small startup - I was employee number 20-something and was the only H1-B until we had about 150+ employees.
When I quit it was 450+ folks and was about 750+ when it was acquired.
The company I joined in 2008 (via AC21), was and still is a startup. When
I joined we were 8 employees and still now, remain lean-and-mean but
kicking some serious ass. (if I say so myself..pardon me). :)
The biggest hiccup as I think of it now was that my wife was not able
to work from 2003-2007. But the EAD in mid-2007 finally solved that
problem. Oh, I never hesitated traveling either : travel to Africa (three
countries) one year, and to Europe (three countries) one year and
Asia (two countries other than India) in one year.
Also purchased a home in 2009 (it was very tempting during the
2004-2006 times...but waited out for good).
So yeah...H1-B/EAD/AP are all handicaps - only if you convince yourself so.
A couple of times I had contemplated Canadian PR or really
moving there or to somewhere in Europe (and even Aus PR).
But pursued nothing mostly because I was lazy.
But all along my wife fully supported in everything I (we) did.
Be it change of jobs, other big decisions..what not.
So thankful to god for that.
Just a bit to go back in the way back machine.
Long ago, labor was the bottle-neck. Then 485, then something else.
Things repeat - old is new, new is old...repeat.
There were times when there was no online checking, no sms, no email notifications.
Six year h1-cap was strongly enforced. no concurrent 140/485. No one year extension of h1. No 3 year extenstions of h1 after 140. No 2 year EADs. No AC21. No priority date porting. I can go on....but a lot of stuff happened...happens.
If there is one thing I learned wrt immigration, it is do things ASAP. Never postpone anything at all. As much as possible get first in the queue.
A general piece of advice: Never reject an option you don't have. [this is more to do with folks who say, "I am only in year 1 in h1..I don't know if I need gc..let me see after 2-3 years.." - guess what einstein, it is easy to give up your gc after you get it, then to get it when you desperately need it.]
Good luck and all the best to those who are waiting.
EB2-IC seems in pretty good shape as far as I can tell.
EB3-folks need some serious legislative help - please consider contributing a fraction of what you send for your immigration-lawyers and get something done. support IV.
And finally: Be Happy!
Peace.
dresses office 365 logo. facing
reddymjm
08-07 03:51 PM
Lets say some miracle happens and EB3 becomes current and EB2 backlogged,
all these calling Us and Lawsuit guys will be the first one to port their PD.
all these calling Us and Lawsuit guys will be the first one to port their PD.
more...
makeup makeup Microsoft Office 365
newtoearth
06-16 03:33 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
if the work will be controlled and supervised by a different employer
READ again
L1B's work will be controlled by the same employer related manager not by client manager. Client manager's are just facilitators there!
Also please note that there is a difference between
L1B - Blanket and L1B - Individual
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
if the work will be controlled and supervised by a different employer
READ again
L1B's work will be controlled by the same employer related manager not by client manager. Client manager's are just facilitators there!
Also please note that there is a difference between
L1B - Blanket and L1B - Individual
girlfriend We tried to compare Office 365
acecupid
06-16 10:42 AM
Thanks for your reply.
what is the meaning of staff augmentation case? He work at client place and client is administered project.The s/w tool is copyright by client.The reason for asking him to come back is that prior to this company he worked for another company for two years. He left his old company before 5 year. when he joined his current company he has provided all the document mentioned in checklist such as offer letter, exp and releiving letter and last two month pay stub and they did BG for same document.During 5 years career he worked for diff client and everytime they did BG for him before putting him in project and there was no problem happen in his BG. recently his current employer find something wrong about his prior company and they asked him to provide more evidance for prior company.now he don't have any contact of his prior employer and he does not have any more evidnace for showing their company.
Because of this reason they are asking him to come back home country from last two week.He told his company that he tryed to connect his prior employer but he can not make out and he don't have anything more to show the company.
Please suggest what he can do in this situation.
If anyone come across in this situation then please reply to my question.
Appericiate your help in advacne
The way I look at your story is that you want to get back at your company in some way. You were employed as L1 by your company all this while and you did not care about fraud at that time ? You were enjoying the benefits so you did not care. Now since your company is going to send you back to India anyways, you want to do everything possible to get them in trouble.
I dont support fraud in any way and I do think such companies should be punished. But you dont have my sympathy either since you think fraud is ok as long as you are benefitting from it.
what is the meaning of staff augmentation case? He work at client place and client is administered project.The s/w tool is copyright by client.The reason for asking him to come back is that prior to this company he worked for another company for two years. He left his old company before 5 year. when he joined his current company he has provided all the document mentioned in checklist such as offer letter, exp and releiving letter and last two month pay stub and they did BG for same document.During 5 years career he worked for diff client and everytime they did BG for him before putting him in project and there was no problem happen in his BG. recently his current employer find something wrong about his prior company and they asked him to provide more evidance for prior company.now he don't have any contact of his prior employer and he does not have any more evidnace for showing their company.
Because of this reason they are asking him to come back home country from last two week.He told his company that he tryed to connect his prior employer but he can not make out and he don't have anything more to show the company.
Please suggest what he can do in this situation.
If anyone come across in this situation then please reply to my question.
Appericiate your help in advacne
The way I look at your story is that you want to get back at your company in some way. You were employed as L1 by your company all this while and you did not care about fraud at that time ? You were enjoying the benefits so you did not care. Now since your company is going to send you back to India anyways, you want to do everything possible to get them in trouble.
I dont support fraud in any way and I do think such companies should be punished. But you dont have my sympathy either since you think fraud is ok as long as you are benefitting from it.
hairstyles Microsoft Office 365
aadimanav
01-03 12:56 AM
Part 2 continued....
USCIS delays have become so excessive in this arena that many foreign nationals have sought relief in federal court. The Administrative Procedure Act of 1946 (APA), which governs federal agency actions and decisions, requires that an agency resolve a matter presented to it within a "reasonable" time frame. See 8 U.S.C. 555(b). Using the APA, foreign nationals have argued that waiting for two or more years for a decision on an immigration application is "unreasonable" under the statute. The cases are divided, but a majority of courts have agreed that making a foreign national wait years and years just for a decision on his or her application is unreasonable. As a result, many judges have ordered the FBI and USCIS to complete pending name check cases within 60 or 90 days where a foreign national has been waiting for two or more years. Some judges have noted that security concerns are not to be taken lightly, but this only reinforces the fact that such issues should be resolved in a matter of weeks as opposed to years.
The success or failure of litigation in this arena ultimately turns on the court's reading of a jurisdiction-stripping provision embedded in the Immigration and Nationality Act (INA), as amended by the Real ID Act of 2005. The INA precludes judicial review of any "decision or action" of the USCIS that is "specified [under INA] to be in the discretion" of the USCIS. See 8 U.S.C. 1252(a)(2)(B)(ii). In defending challenges to delayed applications, the U.S. Attorney's office has argued that the adjudication of a green card application, including the pace of adjudication, is committed to the sole discretion of the USCIS, because the INA specifies that a decision to approve or deny a green card application is within the discretion of the USCIS. See 8 U.S.C. 1255(a).
None of the circuit courts have ruled on this issue, but the relationship between USCIS delay and the role of the judiciary has become a "national judicial debate" at the district court level. See Saleem v. Keisler , 2007 U.S. Dist. LEXIS 80044 (W.D. Wis. Oct. 26, 2007). Some courts have bought the government's argument, holding that a discretionary "action" includes every interim action taken along the way leading up to an ultimate decision on an application. See Safadi v. Howard , 466 F.Supp. 2d 696, 699 (E.D. Vir. 2006). Under this theory, a stalled name check is simply action along the way to a final decision. The majority of courts have rejected this reading of the statute, holding that USCIS' discretion only applies to the ultimate decision on an application, not the pace of its adjudication. As one court stated, "it would require Orwellian twisting of the word ["action"] to conclude that it means a failure to adjudicate." Saleem v. Keisler, supra. Similarly, U.S. District Judge Stewart Dalzell recognized that the INA grants discretion to the USCIS to grant or deny a green card application, but "national security does not require that it also have absolute discretion to delay such an application to Dickensian lengths." Cao v. Upchurch , 496 F.Supp. 2d 569, 574 (E.D. Pa 2007). Put simply, "there is a difference between the [USCIS'] discretion over how to resolve an application and the [USCIS'] discretion over whether it resolves an application." Singh v. Still , 470 F. Supp. 2d 1064, 1068 (N.D. Cal. 2007).
The U.S. Attorney's office has also argued that the USCIS is not required to make a decision on green card or naturalization applications since the INA does not specify a time frame for the agency's decision. See Assadzadeh v. Mueller , 2007 U.S. Dist. LEXIS 80915 (E.D. Pa. Oct. 31, 2007). The government's argument is based on Norton v. So. Utah Wilderness Alliance , 542 U.S. 55 (2004), where the U.S. Supreme Court held that a plaintiff can succeed in compelling an agency to act under the APA if and only if the action sought to be compelled is a "discrete action" that the agency is "legally required" to take. Under the government's theory, the USCIS cannot be compelled to act where its organic statute fails to require it to make a decision. But, under Norton , an agency's regulation with the force of law can create a legal duty. Arguably, the USCIS is legally required to act on applications presented to it, as its own regulations provide that it inform applicants of its decisions. See 8 C.F.R. 245.2(a)(5)(i) (green card applications); 8 C.F.R. 316.14(b)(1) (naturalization applications). Most judges in the Eastern District of Pennsylvania appear to accept this argument. For example, in Kaplan v. Chertoff , 481 F. Supp. 2d 370, 399 (E.D. Pa. 2007), Judge Eduardo Robreno held that the USCIS has a duty to adjudicate green card and naturalization applications, based, in part, on the agency's own regulations.
Once a court determines that its jurisdiction is not stripped under the INA, it usually faces little difficulty finding a cause of action under the APA. Of course, determining whether an agency has acted unreasonably is a fact-intensive inquiry, but the government's position does not look promising where the USCIS has failed to perform three distinct background checks for two or more years without any indication of special circumstances. See, e.g., Saleem v. Keisler, supra . The government has argued that flagging agency resources are to blame, but many courts find little sympathy for such posturing. In addressing the issue of agency resources, one court stated that the USCIS should take its complaints up with Congress. See Liang v. Attorney General , 07-cv-2349-CW (N.D. Cal. Oct. 30, 2007). "The executive branch must decide for itself how best to meet its statutory duties; this Court can only decide whether or not those duties have been met." Id . Even factoring in flagging appropriations, the court held that a two-and-a-half-year delay is unreasonable as a matter of law. Id .
With more than 340,000 cases in the name check backlog, it is not clear when some foreign nationals will ever have their cases resolved at the agency level. At least with the advantageous decisions handed down from the federal district courts, foreign nationals have the hope of going into court to request an expeditious resolution to their name checks. In the majority of situations, it appears that litigation is the only option, but at least an option exists.
Please email the author at gforney@wolfblock.com with questions about this article.
USCIS delays have become so excessive in this arena that many foreign nationals have sought relief in federal court. The Administrative Procedure Act of 1946 (APA), which governs federal agency actions and decisions, requires that an agency resolve a matter presented to it within a "reasonable" time frame. See 8 U.S.C. 555(b). Using the APA, foreign nationals have argued that waiting for two or more years for a decision on an immigration application is "unreasonable" under the statute. The cases are divided, but a majority of courts have agreed that making a foreign national wait years and years just for a decision on his or her application is unreasonable. As a result, many judges have ordered the FBI and USCIS to complete pending name check cases within 60 or 90 days where a foreign national has been waiting for two or more years. Some judges have noted that security concerns are not to be taken lightly, but this only reinforces the fact that such issues should be resolved in a matter of weeks as opposed to years.
The success or failure of litigation in this arena ultimately turns on the court's reading of a jurisdiction-stripping provision embedded in the Immigration and Nationality Act (INA), as amended by the Real ID Act of 2005. The INA precludes judicial review of any "decision or action" of the USCIS that is "specified [under INA] to be in the discretion" of the USCIS. See 8 U.S.C. 1252(a)(2)(B)(ii). In defending challenges to delayed applications, the U.S. Attorney's office has argued that the adjudication of a green card application, including the pace of adjudication, is committed to the sole discretion of the USCIS, because the INA specifies that a decision to approve or deny a green card application is within the discretion of the USCIS. See 8 U.S.C. 1255(a).
None of the circuit courts have ruled on this issue, but the relationship between USCIS delay and the role of the judiciary has become a "national judicial debate" at the district court level. See Saleem v. Keisler , 2007 U.S. Dist. LEXIS 80044 (W.D. Wis. Oct. 26, 2007). Some courts have bought the government's argument, holding that a discretionary "action" includes every interim action taken along the way leading up to an ultimate decision on an application. See Safadi v. Howard , 466 F.Supp. 2d 696, 699 (E.D. Vir. 2006). Under this theory, a stalled name check is simply action along the way to a final decision. The majority of courts have rejected this reading of the statute, holding that USCIS' discretion only applies to the ultimate decision on an application, not the pace of its adjudication. As one court stated, "it would require Orwellian twisting of the word ["action"] to conclude that it means a failure to adjudicate." Saleem v. Keisler, supra. Similarly, U.S. District Judge Stewart Dalzell recognized that the INA grants discretion to the USCIS to grant or deny a green card application, but "national security does not require that it also have absolute discretion to delay such an application to Dickensian lengths." Cao v. Upchurch , 496 F.Supp. 2d 569, 574 (E.D. Pa 2007). Put simply, "there is a difference between the [USCIS'] discretion over how to resolve an application and the [USCIS'] discretion over whether it resolves an application." Singh v. Still , 470 F. Supp. 2d 1064, 1068 (N.D. Cal. 2007).
The U.S. Attorney's office has also argued that the USCIS is not required to make a decision on green card or naturalization applications since the INA does not specify a time frame for the agency's decision. See Assadzadeh v. Mueller , 2007 U.S. Dist. LEXIS 80915 (E.D. Pa. Oct. 31, 2007). The government's argument is based on Norton v. So. Utah Wilderness Alliance , 542 U.S. 55 (2004), where the U.S. Supreme Court held that a plaintiff can succeed in compelling an agency to act under the APA if and only if the action sought to be compelled is a "discrete action" that the agency is "legally required" to take. Under the government's theory, the USCIS cannot be compelled to act where its organic statute fails to require it to make a decision. But, under Norton , an agency's regulation with the force of law can create a legal duty. Arguably, the USCIS is legally required to act on applications presented to it, as its own regulations provide that it inform applicants of its decisions. See 8 C.F.R. 245.2(a)(5)(i) (green card applications); 8 C.F.R. 316.14(b)(1) (naturalization applications). Most judges in the Eastern District of Pennsylvania appear to accept this argument. For example, in Kaplan v. Chertoff , 481 F. Supp. 2d 370, 399 (E.D. Pa. 2007), Judge Eduardo Robreno held that the USCIS has a duty to adjudicate green card and naturalization applications, based, in part, on the agency's own regulations.
Once a court determines that its jurisdiction is not stripped under the INA, it usually faces little difficulty finding a cause of action under the APA. Of course, determining whether an agency has acted unreasonably is a fact-intensive inquiry, but the government's position does not look promising where the USCIS has failed to perform three distinct background checks for two or more years without any indication of special circumstances. See, e.g., Saleem v. Keisler, supra . The government has argued that flagging agency resources are to blame, but many courts find little sympathy for such posturing. In addressing the issue of agency resources, one court stated that the USCIS should take its complaints up with Congress. See Liang v. Attorney General , 07-cv-2349-CW (N.D. Cal. Oct. 30, 2007). "The executive branch must decide for itself how best to meet its statutory duties; this Court can only decide whether or not those duties have been met." Id . Even factoring in flagging appropriations, the court held that a two-and-a-half-year delay is unreasonable as a matter of law. Id .
With more than 340,000 cases in the name check backlog, it is not clear when some foreign nationals will ever have their cases resolved at the agency level. At least with the advantageous decisions handed down from the federal district courts, foreign nationals have the hope of going into court to request an expeditious resolution to their name checks. In the majority of situations, it appears that litigation is the only option, but at least an option exists.
Please email the author at gforney@wolfblock.com with questions about this article.
shouldIwait
05-10 09:35 PM
Please refrain from this cheap low level talk. By talking like this you are demonstrating you lowly state-of-mind, nothing else. :mad:
royus77
06-25 10:35 PM
So you mean that EB2 petitioners are not required to file affidavit of support (either I 134 or I 864) at all for their spouse who are on H4 visa....
Any employment based petitions . You can send that as a supporting document but not mandatory .It wont comes under " initial evidence"
Any employment based petitions . You can send that as a supporting document but not mandatory .It wont comes under " initial evidence"
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