rexjamla
06-15 02:43 PM
Thanks for quick reponse Admin.
1. Can i send one check to USCIS including all fees for me and my wife.
2. Do USCIS accept personal checks or I have to get Bank Check.
3. Can I send my 485 forms and my wife's(she is on H4) forms together in one envelope.
I am sorry doing it first time in life.
Thanks in Advance!
1. Can i send one check to USCIS including all fees for me and my wife.
2. Do USCIS accept personal checks or I have to get Bank Check.
3. Can I send my 485 forms and my wife's(she is on H4) forms together in one envelope.
I am sorry doing it first time in life.
Thanks in Advance!
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abuddyz
01-03 09:33 AM
hi NSABAVALA and KAMDARD,
thank you for posting your information.. I am also planning to schedule appointment in february but looking at this I also feel it might be better to come back on Advance parole...
please post more details when you receive some information from US consulate.. I will really appreciate it..
did they keep your possport with them? If yes, you can't even come back on Advance parole?
whether you had submitted your documents before 3 to 4 days of interview date to VFS center?
.. thanks a lot in advance..
thank you for posting your information.. I am also planning to schedule appointment in february but looking at this I also feel it might be better to come back on Advance parole...
please post more details when you receive some information from US consulate.. I will really appreciate it..
did they keep your possport with them? If yes, you can't even come back on Advance parole?
whether you had submitted your documents before 3 to 4 days of interview date to VFS center?
.. thanks a lot in advance..
vjkypally
10-05 10:43 PM
Congrats SOP. You are not unlucky anymore.:)
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sanju
05-15 10:24 AM
Guys:
Based on the June Bulletin, I will be filing my I485 in June.
Now, I have H1-B(with my current company till Feb'2010 that I just got approved a month back.(not stamped in passport yet)
-- Should I file EAD for myself ( I probably would want to change jobs after 180 days) ? Or is it better to be on H1-B.
-- Should I file AP for both myself and my wife(she is on H4) ?
Also, when I decide to change jobs using AC21 rule, is it better to tranfer
H1-B to a new company or if I have EAD, how does that work ?
Any inputs will be greatly appreciated..!!
Thanks
If I were you, I would apply for EAD and AP for spouse and self immediately. You never know when you may need it. Say, your company announces a merger and your entire department is wiped out and you have to leave before coming Friday. It would be almost impossible to find another employer who will send the new H-1B application before Friday. In such instances EAD will help to keep you in status. EAD card for spouse will allow her to apply for SSN and thus Drivers license. AP for wife will help to travel out of country after you have used EAD. So in short, I would apply for all the docs for all members of the family. This could result in spending couple of hundred dollars but will help secure peace of mind.
Based on the June Bulletin, I will be filing my I485 in June.
Now, I have H1-B(with my current company till Feb'2010 that I just got approved a month back.(not stamped in passport yet)
-- Should I file EAD for myself ( I probably would want to change jobs after 180 days) ? Or is it better to be on H1-B.
-- Should I file AP for both myself and my wife(she is on H4) ?
Also, when I decide to change jobs using AC21 rule, is it better to tranfer
H1-B to a new company or if I have EAD, how does that work ?
Any inputs will be greatly appreciated..!!
Thanks
If I were you, I would apply for EAD and AP for spouse and self immediately. You never know when you may need it. Say, your company announces a merger and your entire department is wiped out and you have to leave before coming Friday. It would be almost impossible to find another employer who will send the new H-1B application before Friday. In such instances EAD will help to keep you in status. EAD card for spouse will allow her to apply for SSN and thus Drivers license. AP for wife will help to travel out of country after you have used EAD. So in short, I would apply for all the docs for all members of the family. This could result in spending couple of hundred dollars but will help secure peace of mind.
more...
kate123
04-01 10:05 AM
Guys do not feed the freeloaders by telling anything you are reading in the donor forum. Let these people help themselves by signing up for recurring contributions if they want helpful nformation about their EB2 PD movemement. We are still not meeting of our advocacy day amount. It is all because most people want free lunches. This needs to stop. The 200 people going to DC tomorrow are going to speak for you and me for yours and mine greencard. They are taking time off and spending own money for you and me. Nothing is free in this world. IV is also doing this for you and me and we are taking it for granted. Let people do some good deed today if they want to know good information
Please do not generalize every one... I was a donor member in the past and I also made several one time contributions towards specific events...
Please do not generalize every one... I was a donor member in the past and I also made several one time contributions towards specific events...
desi3933
06-17 02:29 PM
http://www.nytimes.com/2008/02/28/us/28cnd-prison.html
Thanks for the link.
But these 1 out 100 are in jail, since they are convicted of crime. Don't you think that people who are committing fraud should be punished as well?
This is no where close to 1 out 10 you wrote in your post and later changed it to 1 out of 100.
Educated Smart! :D
.
Thanks for the link.
But these 1 out 100 are in jail, since they are convicted of crime. Don't you think that people who are committing fraud should be punished as well?
This is no where close to 1 out 10 you wrote in your post and later changed it to 1 out of 100.
Educated Smart! :D
.
more...
gvenkat
09-23 08:31 PM
What stops USCIS is the per country cap. They can only issue so many visas to EB-3 I.
What is the per country cap for India?
What is the per country cap for India?
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prashantc
01-22 12:08 PM
Interviewed: Jan 2 2008
VO said visa approved, will receive in 7 days
Jan 18: received a call from the consulate, said the petition number on the application is incorrect, and I need to resubmit the approval notice with fresh DS 156/157 at the Bangalore VFS drop box.
Has anyone else been through the same situation?
I checked a copy of the original DS-156/157, and there was no place to enter receipt number. The only place I could see was where the VFS pre-screening guys enter this number manually (first page DS 156 top right corner).
If this is due to their mistake, I will be very angry and will convey this to the consulate general.
VO said visa approved, will receive in 7 days
Jan 18: received a call from the consulate, said the petition number on the application is incorrect, and I need to resubmit the approval notice with fresh DS 156/157 at the Bangalore VFS drop box.
Has anyone else been through the same situation?
I checked a copy of the original DS-156/157, and there was no place to enter receipt number. The only place I could see was where the VFS pre-screening guys enter this number manually (first page DS 156 top right corner).
If this is due to their mistake, I will be very angry and will convey this to the consulate general.
more...
lazycis
11-07 08:30 PM
Is it possible to file a class status suit?
Maybe IV can cooperate with AILF/AILA and file a classs action? I know that I-485 class action initiated by immigrationportal.com in 2003 has failed, but it could be a different story with IV.
In the meantime, I encourage everyone to fight for your rights individually. The number of favorable decisions similar to what posted above is close to 100 for AOS cases.
http://spreadsheets1.google.com/ccc?key=pBQx8tqZHHU2A6Q-Pv9sULw&hl=en
Maybe IV can cooperate with AILF/AILA and file a classs action? I know that I-485 class action initiated by immigrationportal.com in 2003 has failed, but it could be a different story with IV.
In the meantime, I encourage everyone to fight for your rights individually. The number of favorable decisions similar to what posted above is close to 100 for AOS cases.
http://spreadsheets1.google.com/ccc?key=pBQx8tqZHHU2A6Q-Pv9sULw&hl=en
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gc_chahiye
06-29 06:15 PM
My $0.02. This could be a pre-emptive measure on the part of AILA. There must have been some talk at the state department of mid-month regression. This might be a strategy to scotch that. Raise a ruckus and send a message that we are prepared to file a law suit. Who knows? We are mere pawns in this grand game. Whatever happens, I hope people keep some perspective and not lose sleep over this.
- Sri
yeah right. scare the state-department with a lawsuit.
guys, this is the government we are talking about. A lawsuit is not going to deter them. AILA will settle, the government will investigate and some poor sod somewhere will be fired. Life will then go-on with us hanging on in limbo.
Whatever happens, I hope people keep some perspective and not lose sleep over this.
good advice. Since we cant control whats happening, might as well take our mind off it, and wait and see what happens.
- Sri
yeah right. scare the state-department with a lawsuit.
guys, this is the government we are talking about. A lawsuit is not going to deter them. AILA will settle, the government will investigate and some poor sod somewhere will be fired. Life will then go-on with us hanging on in limbo.
Whatever happens, I hope people keep some perspective and not lose sleep over this.
good advice. Since we cant control whats happening, might as well take our mind off it, and wait and see what happens.
more...
sc3
08-22 11:09 AM
Anyone have any ideas on what EB3 Rest of World will be in the October Visa Bulletin. My Priority date is OCT 2005 EB3 Rest of World. Do you think I have a long wait?
I believe you wait will be predicated only by processing delays.
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?
Yes, at least one immigration attorney disagrees with the current interpretation, however he feels that the laws, as written, gives USCIS/DOS the wiggle room to deflect any lawsuits. Since the law does not deny EB3 the numbers, I think we should start a letter campaign to bear upon USCIS/DOS to take a second look at the law and fine tune their interpretation.
We should also ask other immigration lawyers their thoughts (some who have online chat/discussion).
I believe you wait will be predicated only by processing delays.
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?
Yes, at least one immigration attorney disagrees with the current interpretation, however he feels that the laws, as written, gives USCIS/DOS the wiggle room to deflect any lawsuits. Since the law does not deny EB3 the numbers, I think we should start a letter campaign to bear upon USCIS/DOS to take a second look at the law and fine tune their interpretation.
We should also ask other immigration lawyers their thoughts (some who have online chat/discussion).
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bitzbytz
03-29 05:18 PM
Thanks to IV for getting this done
more...
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garamchai2go
01-09 09:47 AM
Thanks IV. I think this is much easier for hundreds of people to participate as its easy, doesent take up too much time etc. and brings about our points across as compared to DC rally (please dont get me wrong here it was great but difficult for lot of people to attend because of various reasons). So I think we should spread out word about this as much as possible. Again, please dont get me wrong. Thank you.
I agree. Could we post ads on some frequently visited websites like Sulekha/Samachar/TOI and draw them into IV website and make them aware and participate? Even if 1% join it will be a significantly good number. We can also think of making an online petetion to gather signatures from immigrant community; we can use email media effectively to spread the new about online petetion to reach the immigration community. I am sure there will be lot of response for online petetion.
Fyi..I am going to try to meet my anti-immigrant Iowa Senator , Chuck Grassley, this week.
I agree. Could we post ads on some frequently visited websites like Sulekha/Samachar/TOI and draw them into IV website and make them aware and participate? Even if 1% join it will be a significantly good number. We can also think of making an online petetion to gather signatures from immigrant community; we can use email media effectively to spread the new about online petetion to reach the immigration community. I am sure there will be lot of response for online petetion.
Fyi..I am going to try to meet my anti-immigrant Iowa Senator , Chuck Grassley, this week.
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abuddyz
01-22 05:09 PM
When is your interview and where? Will this be your first stamping?
my interview is on feb 1st week and at mumbai.. it will be my second stamping.. my current H1 is approved in April 2007
my interview is on feb 1st week and at mumbai.. it will be my second stamping.. my current H1 is approved in April 2007
more...
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akhilmahajan
05-16 11:55 AM
/\/\/\/\/\/\//\//\/\/\/\/\/\/\/
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ski_dude12
09-28 11:27 AM
You will be considered a PR the day your I-485 was approved. In my case, I am not sure where they got the 2008 date. Most likely it is a data entry error.
Based on my conversation with USCIS customer service, when I return to US, at POE the officer will definitely notice the discrepancy that my I-485 was approved on 09/20 but the card says something else. This might lead to further questions... Better to avoid all this and get it corrected.
It could also lead to issues during citizenship as I am aware of the error. Best is to get a replacement card with correct details. It is surely a hassle considering the 3-4 months wait time, but the right thing to do.
Yes, it was based on the State you lived. One other thing, you may want to check with Customer Service, since when are you have been actually considered a PR. If they have considered you as a PR since 2008, it is good for you, you will be able to apply for Citizenship sooner
Based on my conversation with USCIS customer service, when I return to US, at POE the officer will definitely notice the discrepancy that my I-485 was approved on 09/20 but the card says something else. This might lead to further questions... Better to avoid all this and get it corrected.
It could also lead to issues during citizenship as I am aware of the error. Best is to get a replacement card with correct details. It is surely a hassle considering the 3-4 months wait time, but the right thing to do.
Yes, it was based on the State you lived. One other thing, you may want to check with Customer Service, since when are you have been actually considered a PR. If they have considered you as a PR since 2008, it is good for you, you will be able to apply for Citizenship sooner
more...
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andy garcia
07-10 07:43 PM
We all know that IV is not Indian. More Indian!=All Indian. Lets not worry about it and most importantly I request IV members from all countries to ignore it as a reporter mistake as they script stories in their fashion to elicit more coverage. It is almost impossible to edit the story that has been distributed by Reuters/AP. Once its gone, its out of their hands.
Maybe 80 -90 % Indian.:)
Maybe 80 -90 % Indian.:)
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ezee
08-16 12:30 PM
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!
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!
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TeddyKoochu
04-01 01:08 PM
I don't disagree with any of the statements.. It is totally personal decision for someone to donate or not.
I agree that there is no silver bullet in any analysis. It is a number crunching game.. What is important is follow-up after analysis, which is only possible with IV.
Dems want votes and more Hispanics
GOP want more temps since it is very good for business
Lawyers want more money so they are not interested in solutions. They are in it for money
Individuals want their greencard just in time and not worry about the guy right behind them..
tracker websites need traffic to get money from adds, so they don't want solution..
Thanks I appreciate your follow-up. My response was more for those people whose only objective seems to be to denigrate others (Name calling - Freeloader etc) and divert everyone from the topic.
I agree that there is no silver bullet in any analysis. It is a number crunching game.. What is important is follow-up after analysis, which is only possible with IV.
Dems want votes and more Hispanics
GOP want more temps since it is very good for business
Lawyers want more money so they are not interested in solutions. They are in it for money
Individuals want their greencard just in time and not worry about the guy right behind them..
tracker websites need traffic to get money from adds, so they don't want solution..
Thanks I appreciate your follow-up. My response was more for those people whose only objective seems to be to denigrate others (Name calling - Freeloader etc) and divert everyone from the topic.
aj_jadeja
02-17 12:54 PM
=MerciesOfInjustices]sobers has posted an article published in the WSJ, on his thread Wall Street Journal on Skilled Immigation .
Part of the article says
[I]Plans touted by Justice and Home Affairs Commissioner Franco Frattini, the TE]
reply from john miller
Dear Sir,
Many thanks for your interesting email, which I forwarded to a colleague based in the United States.
I understand it must be hard for somebody in your situation. But anecdotal evidence and statistics suggest that however hard life is for immigrants in the United States, it's even harder for immigrants in Europe.
Thanks again,
John Miller.
Part of the article says
[I]Plans touted by Justice and Home Affairs Commissioner Franco Frattini, the TE]
reply from john miller
Dear Sir,
Many thanks for your interesting email, which I forwarded to a colleague based in the United States.
I understand it must be hard for somebody in your situation. But anecdotal evidence and statistics suggest that however hard life is for immigrants in the United States, it's even harder for immigrants in Europe.
Thanks again,
John Miller.
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.
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