Brainstorm Ideas

I asked the group earlier about this, and wanted to raise this again to see if anyone else is interested or has more information.

I think we have a strong case to file a discrimination class action lawsuit challenging the legal precedence for per-country limits.

If something as trivial as EAD delays are being challenged, why has no one considered challenging per-country limits in court? Is the Indian/Chinese community too scared, or is there something else? I don't think its ever even been tried before.

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Originally Posted by mechanical13

I asked the group earlier about this, and wanted to raise this again to see if anyone else is interested or has more information.

I think we have a strong case to file a discrimination class action lawsuit challenging the legal precedence for per-country limits.

If something as trivial as EAD delays are being challenged, why has no one considered challenging per-country limits in court? Is the Indian/Chinese community too scared, or is there something else? I don't think its ever even been tried before.

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I believe you cannot as the rules are made by the Congress and Senate and can be only over-turned by them. The argument on our side could be we unduly effected by quota but will be hard to win in the Supreme Court as we are not US citizens. If we did win then anyone in the world can file a suit whenever they don't like a rule (Example: 50k diversity quota not including certain nationalities, limiting EB5 to 10k etc).

Our best chance of winning a lawsuit will be CO not applying the quarterly spill-over properly. The unused visas at end of each quarter are being rolled over into next quarter (which continues until the last quarter at which point if there is less demand from ROW then EB2I is getting the SOFAD) which technically is not allowed.

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Originally Posted by mechanical13

I asked the group earlier about this, and wanted to raise this again to see if anyone else is interested or has more information.

I think we have a strong case to file a discrimination class action lawsuit challenging the legal precedence for per-country limits.

If something as trivial as EAD delays are being challenged, why has no one considered challenging per-country limits in court? Is the Indian/Chinese community too scared, or is there something else? I don't think its ever even been tried before.

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I'm no lawyer. Per country immigrant visa limit is a law. And, I don't see that law being violated by USCIS/DoS. To remove per country limits we need a new law. That per country limit removal legislation was discussed on and off. But nothing materialized so far.

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Originally Posted by jimmys

I'm no lawyer. Per country immigrant visa limit is a law. And, I don't see that law being violated by USCIS/DoS. To remove per country limits we need a new law. That per country limit removal legislation was discussed on and off. But nothing materialized so far.

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Well, there have been many 'laws' in this country that have been challenged on a constitutional basis, and on the basis of preceding law.

For example, even if congress mandates the 7% quota, one could argue that the original intent of the law was never meant to be as discriminatory as it is today. As it is implemented today, it is highly discriminatory and perpetuates discrimination against an entire class of people -> preventing job mobility, peace of mind, deepening family ties etc.

It is very similar to many of the other laws that are currently being challenged, such as the laws that prevent gays from getting married.

I suspect that the reason why this has not been challenged in the past is not because it has no legal standing - its probably that there is not as much unity among Indians (thank you, dear colonists for imbibing in us this lack of unity) and no one to take the lead. If we can find one or more people within this group are interested, it would be very nice.

The way I see it, there is the slow way of doing things (the other org that shall not be mentioned) and there is the more confrontational way. I don't think anyone has tried the second route, and I think we should.

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Originally Posted by tkpk88

" hard to win in the the Supreme Court as we are not US citizens. If we did win then anyone in the world can file a suit whenever they don't like a rule (Example: 50k diversity quota not including certain nationalities, limiting EB5 to 10k

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There is no requirement that we need to be US Citizens to challenge something in court. The US legal system gives us equal legal grounds as American citizens. We don't live in the 1800s (although, some people continue to wish we did).

The two examples you give don't have legal standing because they both suggest increasing the quota, which is not within the realm of interpretation of the law. Furthermore, if one could challenge quotas, someone would have challenged the H1B limits already.

I have discussed this topic with people for years and I still believe we have a case to fight the per-country limit for employment based visas for one reason: Its based on country of birth when the whole premise of the visa has nothing to do with where I am born. Where we am born is one of the very few things in our lives that we cannot correct or change. Moreover, the whole process of PERM and labor certification is purely based on our employment and job capabilities but then eventually it does not matter because we are discriminated based on country of birth and I cannot change that.

Sorry if this sounds very crude, they might as well change it to "Visa based on skin color" and the situation will be very similar.

I am all for a lawsuit and willing to put in my time and partner with someone if necessary. The lawsuit needs to be very targeted: Its only for employment based visas. It will be impossible to do the same for FB.

PS: Some have argued that you can change it by becoming super rich (EB-5) or winning the Nobel prize (EB-1). Although the dates are current, the law still fundamentally discriminates based on country of birth

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Originally Posted by mechanical13

The two examples you give don't have legal standing because they both suggest increasing the quota, which is not within the realm of interpretation of the law.

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Originally Posted by mechanical13

For example, even if congress mandates the 7% quota, one could argue that the original intent of the law was never meant to be as discriminatory as it is today.......

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If re-interpreting 7% quota, as you suggest, is not increasing the quota (as was the case in examples I provided as per you) and has legal standing (just based on discrimination)???? then ** is wasting time trying to get HR213 passed (which specifically states "Amends the Immigration and Nationality Act to: (1) eliminate the per country numerical limitation for employment-based immigrants".....and). They could hire a lawyer and file a lawsuit and force re-interpretation of the law.

They have their own agenda. Good bad ugly ... whatever you and I may think of it.

As per challenging country quota in court of law - I have come to the conclusion
a) it is possible
b) is the only way now given the immigration football we have witnessed since 2007.

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Originally Posted by tkpk88

If re-interpreting 7% quota, as you suggest, is not increasing the quota (as was the case in examples I provided as per you) and has legal standing (just based on discrimination)???? then ** is wasting time trying to get HR213 passed (which specifically states "Amends the Immigration and Nationality Act to: (1) eliminate the per country numerical limitation for employment-based immigrants".....and). They could hire a lawyer and file a lawsuit and force re-interpretation of the law.

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Originally Posted by qesehmk

They have their own agenda. Good bad ugly ... whatever you and I may think of it.

As per challenging country quota in court of law - I have come to the conclusion
a) it is possible
b) is the only way now given the immigration football we have witnessed since 2007.

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Thanks guys for the reflections and comments, guys. I am firmly of the opinion that it is possible, and should be attempted. ** is trying the Satyagraha way, but given the nonsense that has transpired over the years, I don't believe it will ever come to pass. Besides, the per country limits only hurts India and China, so we are purely hoping for the benevolence of the lawyers to pass the law. We already know that moral standing is never the only reason for anything to get passed in congress.

On the other hand, as the effected people, we can pursue an alternate path of the courts. As we have seen in recent times, the courts can be pretty broad in their preliminary injunctions.

As I think about this, I wonder if there is a way to force a preliminary injunction of employment based GC approvals across all categories until this 7% case is heard and resolved. Any such action is bound to shake up the immigrant community and make people notice the ludicrous discrimination that is currently occurring. Perhaps it is time for everyone to feel the pain before any action is taken?

I want take this forward. Q - is there a way to create some form of survey or form on this forum to discretely collect the names of individuals who may be interested? I will also post on Trackitt to see if anyone there is interested. If we get a core group of people, we can start organizing into a class and approach an attorney.

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Originally Posted by mechanical13

Thanks guys for the reflections and comments, guys. I am firmly of the opinion that it is possible, and should be attempted. ** is trying the Satyagraha way, but given the nonsense that has transpired over the years, I don't believe it will ever come to pass. Besides, the per country limits only hurts India and China, so we are purely hoping for the benevolence of the lawyers to pass the law. We already know that moral standing is never the only reason for anything to get passed in congress.

On the other hand, as the effected people, we can pursue an alternate path of the courts. As we have seen in recent times, the courts can be pretty broad in their preliminary injunctions.

As I think about this, I wonder if there is a way to force a preliminary injunction of employment based GC approvals across all categories until this 7% case is heard and resolved. Any such action is bound to shake up the immigrant community and make people notice the ludicrous discrimination that is currently occurring. Perhaps it is time for everyone to feel the pain before any action is taken?

I want take this forward. Q - is there a way to create some form of survey or form on this forum to discretely collect the names of individuals who may be interested? I will also post on Trackitt to see if anyone there is interested. If we get a core group of people, we can start organizing into a class and approach an attorney.

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mechanical13 survey is a good idea. Lets discuss offline. I will ping you.

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Originally Posted by axecapone

I have discussed this topic with people for years and I still believe we have a case to fight the per-country limit for employment based visas for one reason: Its based on country of birth when the whole premise of the visa has nothing to do with where I am born. Where we am born is one of the very few things in our lives that we cannot correct or change. Moreover, the whole process of PERM and labor certification is purely based on our employment and job capabilities but then eventually it does not matter because we are discriminated based on country of birth and I cannot change that.

Sorry if this sounds very crude, they might as well change it to "Visa based on skin color" and the situation will be very similar.

I am all for a lawsuit and willing to put in my time and partner with someone if necessary. The lawsuit needs to be very targeted: Its only for employment based visas. It will be impossible to do the same for FB.

PS: Some have argued that you can change it by becoming super rich (EB-5) or winning the Nobel prize (EB-1). Although the dates are current, the law still fundamentally discriminates based on country of birth

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Country-based quotas made sense for Family Immigration (which is how immigration traditionally happened). Quotas were actually introduced to force fairness on the system. Earlier immigration law allowed only Europeans to immigrate to the US.

But this logic never made sense for employment-based. If there truly is a shortage of American workers for a particular job, how does it matter if the person is from Iceland or India.

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Originally Posted by nbk1976

Country-based quotas made sense for Family Immigration (which is how immigration traditionally happened). Quotas were actually introduced to force fairness on the system. Earlier immigration law allowed only Europeans to immigrate to the US.

But this logic never made sense for employment-based. If there truly is a shortage of American workers for a particular job, how does it matter if the person is from Iceland or India.

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I will work with Q to develop a survey we can deploy to capture some basic information discretely from people who may be interested in joining this. The key would be work within a small group until we get a strong case pack together. Once we have the ball rolling, I full anticipate several thousand people to pour in, but the first dozen of us will have to do the heavy lifting.

Meanwhile, please continue to share ideas/pros/cons of pursuing this route.

Going for a lawsuit, the first thing you need a strong and genuine attorney who will fight for this. There are lot of attorneys who will be willing to take up your case and pretend to be genuine. Many of them would just want your money ! For under allocation of visas for EB3-I we had tried that option. One of the leading attorneys offered to "help" us for his fees. However he won't discuss the success chance without getting his down payment.

GCQ - I have some thoughts on this. But I will withheld them for now.

Mechanical13 can't pull this by himself. He will need 3-4 people in his core team who will devote time for this. I can be one. But we need a few more who have a stake in this. If people who are affected by this are not passionate about it and willing to do something about it - why should any lawyer or the US government care about this?

Lets wait to see ... Mech - as I said - feel free to ping me anytime. You already have the moderator access now to create poll and what not.

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Originally Posted by gcq

Going for a lawsuit, the first thing you need a strong and genuine attorney who will fight for this. There are lot of attorneys who will be willing to take up your case and pretend to be genuine. Many of them would just want your money ! For under allocation of visas for EB3-I we had tried that option. One of the leading attorneys offered to "help" us for his fees. However he won't discuss the success chance without getting his down payment.

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Originally Posted by qesehmk

GCQ - I have some thoughts on this. But I will withheld them for now.

Mechanical13 can't pull this by himself. He will need 3-4 people in his core team who will devote time for this. I can be one. But we need a few more who have a stake in this. If people who are affected by this are not passionate about it and willing to do something about it - why should any lawyer or the US government care about this?

Lets wait to see ... Mech - as I said - feel free to ping me anytime. You already have the moderator access now to create poll and what not.

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I am totally in. My knowledge of immigration is not as advanced as the forum members here but I will do the best I can. Let me see if I can test the waters with some attorneys I know.

In the mean time, can we take these discussions to a more private place? I feel that such an open forum might be detrimental to our case.

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Originally Posted by axecapone

I am totally in. My knowledge of immigration is not as advanced as the forum members here but I will do the best I can. Let me see if I can test the waters with some attorneys I know.

In the mean time, can we take these discussions to a more private place? I feel that such an open forum might be detrimental to our case.

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Hey guys - thanks the reflections and notes.

I would hold off on contacting any attorneys until we have put together a robust core team, have a clear understanding of the adverse impact points we want to chase, and the various 'classes' we want to identify.

We can discuss timing, but I'm of the opinion that we should do a lot of the heavy lifting first before reach out to an attorney.

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Originally Posted by mechanical13

Hey guys - thanks the reflections and notes.

I would hold off on contacting any attorneys until we have put together a robust core team, have a clear understanding of the adverse impact points we want to chase, and the various 'classes' we want to identify.

We can discuss timing, but I'm of the opinion that we should do a lot of the heavy lifting first before reach out to an attorney.

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Fair enough. Will hold off

All right, lets kick off some discussions around this. Some questions I had in mind are

1. What is the impact on EB-X for India if we go along this route? How much does it improve our time of getting our greencard? Is there a way for us to model this and see how much improvement we will see in date movement?
2. There is also HR213 in the making. There are about 33 co-sponsors to that bill. Should we wait for something to happen there or is it a dead end?
3. What kind of ground work should we do before we reach out to an attorney? Whom should we partner with to make sure our chances are high in winning this?

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