EB2-3 Predictions (Rather Calculations)

[abcx13]

I joined the suit. Like Idliman says, don't stay put. Keep the hustle on. In the worst case you may lose $2000 but you don't want to live with the regret that you had a shot and you didn't take it. If $2000 is not a big deal for you then go for it.

This is what I am thinking too. The money is not a big deal so it seems like a no brainer to join, assuming we have a decent case. I have been doing some research on that right now - it seems historically mandamus claims against USCIS on AoS were typically filed after 18-24 months, as before that the agency could argue that it's not an unreasonable delay. IANAL, but given the super long processing times posted on their website for 485s and the fact that the GC numbers expire at the end of September, I am thinking there is a somewhat reasonable case that delays - even if arguably reasonable processing time at 11 months - cause irreparable harm. And I think maybe it could be shown that these delays could have been anticipated way in advance as it was clear there would be huge FB spillover.

[AceMan]

Could you please elaborate? My wife's H4-EAD was delayed and we were able to get it approved by joining a lawsuit by a different firm earlier this year. I am considering joining this lawsuit as well, and would love to hear your thoughts/suggestions.

H4 EAD is just an Employment Authorization Document. Green card is allowing a person to be immigrant of this country. If USCIS plays the national security card, courts will have to side with them. Game over.

Beg to differ. USCIS gets sued all the time. Even small time immigration attorneys start litigation against USCIS for various immigration related proceedings. Most of the time USCIS takes a soft approach because they don't have resources to stage a trial. I get your point about letting USCIS focus on processing GC. But regardless of what you do or don't, there is very little delta in USCIS processing time. What do you do in such case? Stay put or take action ? To be honest, it's every man for himself in this race.

Yeah, each persons choice. I am providing my views on it.

[SG2020]

H4 EAD is just an Employment Authorization Document. Green card is allowing a person to be immigrant of this country. If USCIS plays the national security card, courts will have to side with them. Game over.



Yeah, each persons choice. I am providing my views on it.

Sorry - I should have been more specific about my question. Could you please elaborate on "...knowing the role of Greg Siskind in the 2015 filing date fiasco lawsuit"? Thanks.

[txsguy]

Think of this lawsuit as lobbying effort. Some ppl spent money on immigration voice lobbying, some might spend money on this lawsuit which will bring spotlight into the inner workings of USCIS.
Win or lose if you don't do anything then nothing will get passed.
Lawyers are crooks and so are lobbyists. Nobody can guarantee success.

[qesehmk]

I would think the stories from Idliman and many others here might have an effect on my views.

To your credit Ace - a man who is capable of changing his opinions is priceless !

Also this is the beauty of respectful intelligent discourse. People find value in it. We should all thank each other.

[suninphx]

Is USCIS required to process all spillover visas as per any law? If they process 140k EB based GCs (which they barely do even in normal times) wouldn't they claim their job is done as per law?

[Turbulent_Dragonfly]

Thanks TD for sharing piece of history.

This is also a worthwhile read:
https://fas.org/sgp/crs/homesec/visagate.pdf

[mr00us]

Just ask yourself 1 thing before getting in to the lawsuit. Will it be decided before September 30th 2021, because fiscal year ends then. Then ask, even if Siskind wins the case and the judge says to use all the visa numbers, will USCIS be able to adjudicate before September 30th 2021?

Lawyers gets their $2000 x 1000 (a guess) = $2000000, USCIS gets pissed at Indians. They filed a lawsuit earlier and we all know who was at the receiving end of USCIS's brunt.....

[AceMan]

To your credit Ace - a man who is capable of changing his opinions is priceless !

Also this is the beauty of respectful intelligent discourse. People find value in it. We should all thank each other.

That is the beauty of having own opinions. If I realize it was wrong, I am not averse to correcting it.

[qesehmk]

According to the law USCIS is expected to process 140,000 EB visas a FY. Did they process that? The lawsuit is the one you should question.

Ace - and everybody - this is very important. Please pay close attention:

The law has an upper limit on visa utilization. There is no lower limit on visa utilization. So USCIS can utilize ZERO and it is within its legal limits.

So any lawsuit that faults USCIS for not utilizing quota has no merit on legality of USCIS's underutilization. The lawsuit will have merit when it can demonstrate that USCIS's under performance resulted in material damages to somebody.

[insane.yogi]

Posting again for feedback -

Hello everyone, I have a question regarding my GC process and looking to get feedback on the general approach from gurus on this forum

- I have a EB2 priority date from my previous employer of Oct 2011.
- I switched jobs in 2019, PERM process was initiated in 2019 and after COVID delays (recruitment process to be specific since offices were closed), the new PERM was submitted to DOL in Jan 2021.
- With latest PERM trends and I'm estimating to get PERM approval by July 2021 and file concurrently for I-140/485

My question, should I wait till Oct to file in EB2 ? (since USCIS is only accepting FADs) Or should i concurrently file in EB3 directly (FAD will be current) ? Does it even matter at this point if I file in EB2 or EB3 in Aug/Sept time frame? Looking forward for feedback.

[rsnake]

It can always say didn't receive medicals or birth certificate and ask to resend ? wasting time.

If the USCIS actually does that with the plaintiffs, the people in USCIS who ordered that will at the least lose their jobs and may face federal charges. Judges take a very dim view of things like this, and lying in court briefings to a federal court is a big crime in itself. The lawyers can ask for discovery on records medicals and birth certificate right from when the dropbox(run by a USCIS contractor) scans the applications. No one in USCIS, especially an adjudicating officer cares that much to risk their job and going to jail by sending fake RFEs while under the microscope of a federal court case. They will try to drag it on and/or expedite only the plaintiffs' cases. We have seen this with the EAD lawsuits.

[abcx13]

Is USCIS required to process all spillover visas as per any law? If they process 140k EB based GCs (which they barely do even in normal times) wouldn't they claim their job is done as per law?

I believe there is no requirement to process any spillover, but there is an administrative requirement to process in a timely fashion, which seems to be defined as 18-24 months before lawyers advise filing mandamus writs. The weakest part of the case to me seems that the judge could say processing in 2 years is timely and it's too bad the spillover visas are lost. But I think the agency has to present an administrative record showing a good faith effort that they did try to process visas. I don't think USCIS can just say we only process 140k EB GCs/yr and that's it because there is congressional intent to preserve unusued FB visas (hence the spillover to EB and then the reverse spillover to FB, which unfortunately goes waste due to quirk).

[abcx13]

Ace - and everybody - this is very important. Please pay close attention:

The law has an upper limit on visa utilization. There is no lower limit on visa utilization. So USCIS can utilize ZERO and it is within its legal limits.

So any lawsuit that faults USCIS for not utilizing quota has no merit on legality of USCIS's underutilization. The lawsuit will have merit when it can demonstrate that USCIS's under performance resulted in material damages to somebody.

Again, whatever number they process, they have to show a reasonable good faith effort I think. They can't just process zero and blame Covid. But yes, the judge might say it's too bad 120k spillover visas went waste if the agency tried their best.

The tricky thing I think is you can't sue after the visas are wasted because there is no recapture process / remedy and you can't sue early in the year before they are wasted because there is nothing to remedy yet. So you sort of have to sue around now I am guessing ...

[gsingh]

Folks ,

AOS/H4 EAD.

Filed I-485/I-765 on 10/30/2020 with TSC (PD 04/2012 in EB3.I-140 approved.) still waiting for EAD/fingerprinting.
My spouse needs work authorization for a new job.(Was on H1B before).
We tried to expedite EAD but USCIS denied it without requesting an evidence. Reached out to the local congresswoman and her office
made the inquiry with USCIS over a week ago. No response yet.
My H1B is up for renewal. I was under the impression that I can file H1 in premium with H4 petition and H4 EAD application and
USCIS processes it together in the PP time frame but I hear that policy changed sometime back and H4 applications much longer.

Question -
1. Is there another avenue we can explore to get AOS EAD expedited?
2. H4 EAD - Anyone had success getting H4 EAD processed in the PP time period recently. If we include the job offer(and any additional explanation) with the H1B/H4 application, any chance USCIS will consider it ?

Appreciate any suggestions.

[AceMan]

I believe there is no requirement to process any spillover, but there is an administrative requirement to process in a timely fashion, which seems to be defined as 18-24 months before lawyers advise filing mandamus writs. The weakest part of the case to me seems that the judge could say processing in 2 years is timely and it's too bad the spillover visas are lost. But I think the agency has to present an administrative record showing a good faith effort that they did try to process visas. I don't think USCIS can just say we only process 140k EB GCs/yr and that's it because there is congressional intent to preserve unusued FB visas (hence the spillover to EB and then the reverse spillover to FB, which unfortunately goes waste due to quirk).

The steps USCIS did in FY 21.

1. Removed the need for I944.
2. Requested public for suggestions to improve the process.
3. Removed H4/L2 biometric need.
4. Allowed applicants who got rejection notice after January, to refile even the dates were not current.
5. Simplified the 485 application.
6. The visa bulletin dates started releasing faster than previous timelines.
7. Most of the delay/incomplete forms resulted in November visa bulletin, releasing on the last day of October

When there is a sincere attempt from the Administration and USCIS to skip mandated AOS interviews, a frivolous lawsuit by this specific lawyer can result in USCIS reinstating the interviews as mandatory.

It is important to know your rights, it also important to know the other parties rights.

If you have some time read through https://en.wikipedia.org/wiki/Kazarian_v._USCIS

Lawyers claim the above lawsuit is a win for them as USCIS was forced to change the policy with tightening up of EB1A and B and still continuing.

[krnashvom8]

Folks ,

AOS/H4 EAD.

Filed I-485/I-765 on 10/30/2020 with TSC (PD 04/2012 in EB3.I-140 approved.) still waiting for EAD/fingerprinting.
My spouse needs work authorization for a new job.(Was on H1B before).
We tried to expedite EAD but USCIS denied it without requesting an evidence. Reached out to the local congresswoman and her office
made the inquiry with USCIS over a week ago. No response yet.
My H1B is up for renewal. I was under the impression that I can file H1 in premium with H4 petition and H4 EAD application and
USCIS processes it together in the PP time frame but I hear that policy changed sometime back and H4 applications much longer.

Question -
1. Is there another avenue we can explore to get AOS EAD expedited?
2. H4 EAD - Anyone had success getting H4 EAD processed in the PP time period recently. If we include the job offer(and any additional explanation) with the H1B/H4 application, any chance USCIS will consider it ?

Appreciate any suggestions.

Singh, I think your best bet is to request (and keep requesting) expedited processing of I485 EAD. H4 EADs still are taking a long time. If you look at threads on Trackitt quite a few people have had success getting 485 EAD expedited after making repeated attempts (3rd or 4th time). You have a genuine reason citing the impact on your spouse's job. That my opinion, others can chime in too.

[gsingh]

Singh, I think your best bet is to request (and keep requesting) expedited processing of I485 EAD. H4 EADs still are taking a long time. If you look at threads on Trackitt quite a few people have had success getting 485 EAD expedited after making repeated attempts (3rd or 4th time). You have a genuine reason citing the impact on your spouse's job. That my opinion, others can chime in too.

I didn't know USCIS considers repeated expedite requests. Will try that. Thanks krnashvom8

[Zenzone]

Two questions this morning -

1) How do we find which officer is processing your case. I keep seeing people mentioning the officer id for tracking and estimating. Just curious.

2) Do all I-485 applications ultimately get adjudicated by a Field Office? For example, mine is with my FO and wanted to understand if that means there will be an interview? I have received my Medical RFE though.

Need clarity so can someone help here pls?

[vsivarama]

Two questions this morning -

1) How do we find which officer is processing your case. I keep seeing people mentioning the officer id for tracking and estimating. Just curious.

2) Do all I-485 applications ultimately get adjudicated by a Field Office? For example, mine is with my FO and wanted to understand if that means there will be an interview? I have received my Medical RFE though.

Need clarity so can someone help here pls?

1) I have not received any RFEs yet. But from what I heard you will see the id at the bottom as part of the signature. He/She is officer working your case.

2) Does you medical RFE give you two options aka i) mail it to a certain address or ii) to bring medicals to your interview? If the second option is not mentioned then chances are high that you will not be interviewed.

[rsnake]

Two questions this morning -

1) How do we find which officer is processing your case. I keep seeing people mentioning the officer id for tracking and estimating. Just curious.

2) Do all I-485 applications ultimately get adjudicated by a Field Office? For example, mine is with my FO and wanted to understand if that means there will be an interview? I have received my Medical RFE though.

Need clarity so can someone help here pls?

The officer ID is mentioned at the bottom of physical RFE letters and other communications. Example https://i.redd.it/9m6dajyj47m51.jpg

I-485 applications may or may not go to a field office currently. Some are getting RFEs and approvals directly from NBC, others are getting them from field offices. RFE from field office does not mean that there will be an interview. Chances of no interview are higher if your medical RFE says to mail them them the medicals and does not give an option to bring them to the interview.

[Zenzone]

The officer ID is mentioned at the bottom of physical RFE letters and other communications. Example https://i.redd.it/9m6dajyj47m51.jpg

I-485 applications may or may not go to a field office currently. Some are getting RFEs and approvals directly from NBC, others are getting them from field offices. RFE from field office does not mean that there will be an interview. Chances of no interview are even higher if your medical RFE says to mail them them the medicals and does not give an option to bring them to the interview.

Thanks both for the clarification! My RFE doesn't have the officer ID in it (it has come from the local Field Office and not from NBC). Its also not in the letter format you had shared above as its the actual RFE. Also, there is no mention of bringing in medicals for an interview either. It simply states that I need to mail it in before the due date specified so hopefully no interview then. Fingers crossed!

[SG2020]

Folks ,

AOS/H4 EAD.

Filed I-485/I-765 on 10/30/2020 with TSC (PD 04/2012 in EB3.I-140 approved.) still waiting for EAD/fingerprinting.
My spouse needs work authorization for a new job.(Was on H1B before).
We tried to expedite EAD but USCIS denied it without requesting an evidence. Reached out to the local congresswoman and her office
made the inquiry with USCIS over a week ago. No response yet.
My H1B is up for renewal. I was under the impression that I can file H1 in premium with H4 petition and H4 EAD application and
USCIS processes it together in the PP time frame but I hear that policy changed sometime back and H4 applications much longer.

Question -
1. Is there another avenue we can explore to get AOS EAD expedited?
2. H4 EAD - Anyone had success getting H4 EAD processed in the PP time period recently. If we include the job offer(and any additional explanation) with the H1B/H4 application, any chance USCIS will consider it ?

Appreciate any suggestions.

I think you should be able to have all three applications go through your H1b PP. The biometric requirement for H4 has been removed - that was the only 'legal' reason why USCIS was separating the H4+H4-EAD application from the H1b. Please check with your attorney to confirm.

[srimurthy]

I think you should be able to have all three applications go through your H1b PP. The biometric requirement for H4 has been removed - that was the only 'legal' reason why USCIS was separating the H4+H4-EAD application from the H1b. Please check with your attorney to confirm.

Once you file for H1 extension, and then file PP if the H1 gets approved faster, there is a possibility that in the next 15 days or so the H4 extension and H4-EAD can also get approved.

[AceMan]

The officer ID is mentioned at the bottom of physical RFE letters and other communications. Example https://i.redd.it/9m6dajyj47m51.jpg

I-485 applications may or may not go to a field office currently. Some are getting RFEs and approvals directly from NBC, others are getting them from field offices. RFE from field office does not mean that there will be an interview. Chances of no interview are higher if your medical RFE says to mail them them the medicals and does not give an option to bring them to the interview.

In my case it was the Director's id. I expect it would be one of his reports working on the case.