Sunday, July 3, 2011

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  • villamonte6100
    02-18 11:17 AM
    (1) There was no shortage of laypeople and even attorneys who asserted that "USCIS isn't doing anything wrong they are just following the law" when it came to FBI name checks. Fortunately for all of us sharper legal brains and sharper judges prevailed, and brought us to this happy day.

    (2) On Class Actions: Villamonte, have you read the Mocanu decision ( If not I encourage you to do so -- that was just individual cases being consolidated, but the situation is not very different -- you should pay particular attention to the part where Judge Baylson recommends a multi-district class action litigation to deal with all the other name check cases (see p. 16, para numbered 6).

    The parallels between the those cases and the one being proposed are very strong.

    Judge Baylson is not the only judge who has recommended a class action approach to these issues. IV members should also be aware that all we need are a few named plaintiffs, it isn't as though every IV member or even everyone wanting to sue needs to be a named plaintiff. All the judge needs to recognize is that there is a large group of applicants with same or similar grounds for suing USCIS/Emilio Gonzalez. Edit to add: IV the organization doesn't even need to be the primary plaintiff, since that will necessarily cutoff any parallel discussion with the agencies. The IV forums are just a place to organize this.

    (3) Preliminary Ideas on the Grounds for Suing (courtesy lazycis):
    The grounds for suing USCIS is the same as in Gonzalez v Howerton -- (a) interpreting the law incorrectly (b) not following the statutory requirement that they use up all the greencards available in a given year and therefore being guilty of affirmative misconduct. At the very least, a judge is within his rights to make them make amends -- by recapturing 2003-2004 EB greencards, since they wasted them as a result of their affirmative misconduct -- they waited for name checks or simply not processing applications - no one can say there wasn't an application backlog in 2003-2004.

    (4) First Steps
    What we need here is to get this matter before a good legal strategist who is familiar with (a) the two sources of affirmative misconduct (FBI name checks and cessation of processing in 2003-2004) (b) precedents and caselaw (note that most immigration law firms are good with filing paperwork, but not necessarily complex litigation, so forget about the usual suspects.) The perfect legal argument will not sprout up immediately. In the same way that the legal arguments in the name check cases were honed over time (lazycis can confirm this), this too will need some serious research and thinking.

    Those of you who want everything about this case sorted out, signed, sealed, guaranteed and delivered this week will need a reality check. :)

    As will those of you who think that the way to approach this is to discuss these issues without familiarizing yourself with facts and legal precedents in some detail (so arguments about slavery etc are not the ones that will win the day in court, it is arguments that can show that USCIS was not interpreting the law correctly and in doing so caused harm and that the harm can be remedied through recapture.) -- if you want to see how a case like this will work read Mocanu and Galvez. This case will not be a dramatic movie-style civil rights case about slavery, it will involve the most tedious sort of nitty gritty discussion of admin misconduct.

    OTOH, for most of us, all we've got is time -- I do not foresee my Jan 2003 EB-2 India PD becoming current any time soon. I'm prepared for a long legal battle. I'd rather do something constructive** that will likely change the process than sit and wait and mope.

    **: Yes, I've sent off my letters too. I think of these two things as complementary projects.

    Neither of us are lawyers and I wouldn't even bother reading what you wrote. All I can say is, why don't you ask your immigration lawyer about this Class Action. Let's see what he says.

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  • letstalklc
    09-03 11:25 AM
    Very sad news...May his soul rest and peace....

    Guys don't put any bad comments against him, Please not that I am not associated with any political's not good to put bad comments against the person that he is no more....

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  • qvadis
    02-13 07:23 PM
    No. You are wrong..
    202 (e)(3) will not applicable, because of (a)(5).

    The third point excempts that ..

    (3) 3/ except as provided in subsection (a)(5), the proportion of the visa numbers made available under each of paragraphs (1) through (5) of section 203(b) is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(b).

    202(a)(5) was added by AC21!! That's exactly the change that allowed USCIS to give additional visas to over-subscribed countries.

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  • okuzmin
    10-05 06:07 AM
    Yes... at the time of application the H1B should be valid for at least 1 year.... I got my papers returned to me coz of this. I reapplied once I renewd my H1 for 3 more yrs

    It doesn't have to be H1B; you simply had to enter the USA legally (in any status) and stay legally in the country for at least one year. F1, J1, H1, L1, or any other status -- it doesn't matter.


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  • Macaca
    01-28 07:35 AM

    I did not understand the meaning of this add. Please explain. Thanks!

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  • samay
    07-21 08:28 PM
    Dear Attorney,

    I am from India and working as a Software Programmer / Analyst in a decent company and I am using AC21 with this company...and my Green Card journey started September 2002.

    Labor applied (EB3) - September 2002
    Labor approved - July 2003
    I-140 / I-485 applied - December 2003
    I_140 approved - August 2004 after responding to an RFE
    Two times finger prints done and name check is done.
    RFE about sons birth certificate -- responded last year.

    But still the way things are going with Visa numbers and seems no light at the end of the tunnel. I am decided to change EB3 to EB2.

    What would you suggest?

    Where can I find the process for this switch (EB3 to EB2) ??

    Is there any benefit switching from AOS to Consular Process?

    Thanks and appreciate your response.

    The process of switching from EB3 to EB2 also takes some time and expense. Please do consult your attorney and weigh in all pros and cons very carefully. In case you require assistance please contact me.


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  • drirshad
    07-03 07:59 PM
    Can IV try for a Bridge Legislation ...................

    Tuesday, July 03, 2007
    Bridge Legislation Update

    HLG is still actively seeking Bridge Legislation. The purpose of the bridge is to provide a short-term fix to the current retrogression problem for Schedule A occupations. As many readers are aware we are one of the founding members of the Coalition to Improve Healthcare Staffing. The CTIHS is pleased to announce that in June it retained two prominent Washington lobbyists and consultants. The lobbyists are working 24/7, along with the AHA, to seek this goal.

    If any immigration attorneys and/or healthcare stakeholders wish to participate in this effort and contribute funds to the effort, they should contact Chris Musillo (

    The biggest hurdle we have right now is general “immigration malaise” in Congress; no one wants to talk immigration at this point. Congress is on a short break for the American Independence Day. Many of the staffing companies and hospitals that make up the CTIHS have meetings set up with their Congressmen and Senators this week.

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  • mbartosik
    02-13 04:45 PM
    The level of commitment for those that would be plaintiffs, unlike the MI DL case would be a lot more, because USCIS could attempt to adjudicate their cases aggressively. The level of money would be significant. Think $200 per hour, for many man months of work. Without at least $50K in the pot with plenty more available I wouldn't even entertain it.

    The level of time commitment is probably equivalent to obtaining 500 letters to the president.

    So how about we have a pole.

    First question is how much you are willing to contribute?

    Are you willing to be a plaintiff with a $10K penalty for withdrawing?

    Let's make that last question only open to those who have obtained or will obtain at least a 100 letters, and have already demonstrated willingness to travel to court hearings and depositions (like attending the DC rally and meeting law makers etc.).

    I suspect that less than 10 people are qualified to vote to be plaintiffs, based on my commitment criteria and some of them already have GC or will likely have soon.

    To put the effort into context both Walking_Dude and myself put a lot of effort into MI DL issue. We needed people with legal standing to sue. The two we had dropped out late, one on the day before filing complaint. I had put at least 40 hours working on this (but being in NY I don't have legal standing).

    I've done litigation before, and done some Pro Se (latin on behalf of self - no attorney), believe me the litigation that you are talking of requires considerable time and commitment (unlike the MI DL issue which only required a few hours of the plaintiffs).

    It would cut us off from USCIS. Once litigation starts you are burning your bridges. I can see only one practical way to do litigation, that is for an small group with no clear IV affiliation to do it, that instantly eliminates any committed members.

    So let's stop talking about this and invest in letters.


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  • BlueSkyPro
    09-24 03:43 PM

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  • gcny2006
    05-28 11:58 PM
    Can someone tell me if this is right?

    - Total number of EB-2 visas = 40,000
    - 7% of 40,000 are allocated for India = 2,800
    - Number of EB-2 I I-485 apps pending = 30,000

    So if there is no spillover from other categories it will take north of 10 years for all the people who applied for I-485 in the July 2007 fiasco to get Green Cards. The only caveat to this would be attrition or legislation.


    Mr. Oppenheim has set the cutoff date for EB2 India at January 1, 2000. According to current estimates, out of the approximately 200,000 I-485 applications currently pending with USCIS, 120,000 of them are chargeable to India, with the cases divided evenly between EB2 and EB3. This means that EB2 and EB3 India applicants count for 60 percent of the I-485 cases currently pending with the USCIS.

    - Number of EB-2 I I-485 apps pending = 60,000

    so with no trickle it will be 20+ years


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  • krish2005
    01-14 12:15 PM
    To the poster of this thread.

    Voted your thread as 5 stars given the severity. The info provided by you is so very critical to our survival as H1B in US.

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  • kshitijnt
    03-29 11:23 PM
    I am not sure what vision Mr.Advani has for India. May be at this age he might have better vision than other people in the same league.

    Lets not bring Age into the picture. Manmohan is not much younger either and has had 2 heart surgeries so far. Economy is not the PMs only job. The real power rests with Sonia and my personal opinion is that Advani is a lot more competent than her. Manmohan is just a mask of Congress. "Mukhvta".


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  • shana04
    10-15 03:11 PM
    I have built a very simple EB2-I Visa predition model

    Making following assumption

    15000 new EB2 ROW I-485 applications
    12000 new EB1 I-485 applications
    EB4/EB5 use 70% of allocated visa (30% spillover)

    EB2 Visa Bulletin prediction for FY 2010
    Bulletin Quarterly-spillover Annual Spillover
    Oct-09 22-Jan-2005 22-Jan-2005
    Nov-09 22-Jan-2005 22-Jan-2005
    Dec-09 31-Mar-2005 1-Feb-2005
    Jan-10 31-Mar-2005 15-Feb-2005
    Feb-10 31-Mar-2005 31-Mar-2005
    Mar-10 31-Mar-2006 31-Mar-2005
    Apr-10 31-Mar-2006 31-Mar-2005
    May-10 31-Mar-2006 31-Mar-2005
    Jun-10 15-Oct-2006 31-Mar-2005
    Jul-10 15-Oct-2006 30-Sep-2005
    Aug-10 15-Oct-2006 30-Apr-2007
    Sep-10 31-Mar-2007 30-May-2007

    Amen! I wish your predictions come true.

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  • tikka
    07-03 11:38 PM
    Digged , Thanks admins for all these, I really appreciate your hardwork. I want to call senator/Rep in PA, Any contacts of them..

    this might help

    thank you for digging


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  • garybanz
    12-14 05:49 PM
    I am in.

    Thank you BharatPremi.

    Please respond to this post and let us know if you support us.



    I think we have spent enough time discussing this, please respond to this post if you are willing to share the cost of taking this discussion to a top Constitutional attorney. (just the cost of initial discussion...not the actual case)

    Also if some one can point me in the right direction on finding the right attorney for this question then I'll really appreciate it.


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  • BharatPremi
    12-13 01:49 PM
    If per Country Laws are removed in issuing Green Cards, then 90% of the employment based Visa's will be given to Indians and that too in the IT Sector.

    Mostly the country will be Indians, chinese, mexicans . The Law makers don't want to colonize America.

    There is a lot of stress that was done in making that decision

    You can challenge this but i would say, you will never win it.

    You can challenge the State but cannot win it.

    Yearly permitted H1s - 65000
    All EB ased GC applicants: 500000 (Approx.)
    As per you theory: 90% Visas will be given to Indians :eek:
    US Population: 300 million (Approx.)

    Do the math and prove me how it will be colonized ? And define the word: "Colonized"... as you were also talking about chinese and mexicans..

    yes, aim seemed to be control the Genetic Pool but your statement is way streched...


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  • soljabhai
    12-14 09:28 AM
    It is not the case that a law cannot be challenged. All the authority of the various government branches (legislative, judicial and executive) is derived from the powers created in the constitution. So even if congress creates a law and president signs it, it can still be challenged if it is found to be contradicting with the constitution from which the government branches derive their authority.

    If that was not the case then "Separate would still have been equal" and we would have still been living in a divided society with whites having different schools, hotels and theaters than everyone else. The Supreme Court ruled that "Separate cannot be equal" and all the laws for separating the different ethnicities immediately became unconstitutional and hence invalid.

    The question is not that whether any law can be challenged but whether this rule regarding per country ceilings can be. Only a constitutional expert can answer that question.

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  • eastindia
    07-21 02:30 PM
    If a person is making lot of money through this e-commerce business why is he shopping in cheap Walmart? Why do they drive cheap cars? Beats me.

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  • smuggymba
    01-15 03:59 PM
    I'm not sure why ppl gave me red for posting a business practice of desi dallas.

    Can you please tell me if what I posted is wrong or you just don't want to accept the facts?

    I trust the talent of desi dallas, they will come up with a way to circumvent this

    Their other talent includes asking some part of money from the employee from their salary every month so that they can give them money when they are on bench. They are genius. They come up with some serious fun stuff

    10-15 03:37 PM
    logon ke muh mein ghee shakkar:)

    07-22 11:55 AM
    Smile - I can prove this is a relevant topic

    Some of these jokers (Quikstar..Amway) have filed GC in EB2 and Eb3 which is illegal, someday states Like Arizona will declare that anyone looking like us should be checked for Amway membership and deported

    Profiling is an issue and because of some jokers we all may have to go thru scrutiny.

    We should ask USCIS to check all GC applicants name in Amway database and if found USCIS needs to send them to Mexico (because illegal)..

    We should write to senators... your opinion on this? ( this way Indiancommunity can be clean and fight for legal hardworking people in immigration policy)

    Please for GOD SAKE understand that this is an immigration Portal.
    Not a fish market where we can discuss the prices of item at different stores.

    Please stop this Admin