logiclife
06-08-2006, 11:10 AM
Here is a brief description of Lawyer's opinion that we heard on a conference call arranged by IV and Randall Emery of American Families United on June 7th.
These notes below were prepared by Randall after the conference call.
JOIN THIS GROUP
To join a group of individuals and co ordinate efforts, go to this thread and signup :FBI name check delays signup (http://immigrationvoice.org/forum/showthread.php?t=898)
Also, there is a Yahoogroups group called namechecktracker created for communicating and co-ordinating. There are nearly 100 members stuck in name check delays of 485 filing.
Notes based on yesterday's conference call:
This is only notes prepared based on legal opinion of a lawyer who specializes in Writ of Mandamus cases against the USCIS for citizenship cases as well as family based and employment based greencards. This most not be construed as any kind of attorney client relationship.
- Priority Dates and Writ of Mandamus:
In employment based immigration cases, if your priority date is not current then the chances of success by filing writ of mandamus are negligible. To have a successful Writ of Mandamus, you need to have your priority date current. Otherwise the USCIS will respond to WoM by saying that the case is not actionable and a decision cannot be made until the case becomes current per visa bulletin.
- Your Case:
A writ of mandamus is best for clean cases (where there are no
criminal arrests, or more importantly, convictions) because a writ of
mandamus only compels the government to make a decision; it does not
say what the decision should be
- How long have you been waiting whether to pursue a writ of mandamus depends on how long you have
been waiting on your case (and for employment based cases, if your
priority date is current). Rule of thumb: waiting less than 1 year -
not advised unless continued wait would cause harm; 1 - 2 years -
should consider WOM; 2+ years - it's time to file
-Possibility of Class action because of the individual nature of a writ of mandamus (as noted in
the above 2 points), and because of the difficulty in getting a
national jurisdiction, WOM does not easily lend itself to a class
action; Joe Hohenstein(Orlow and Orlow) will follow up on this in more detail at the American
Immigration Lawyer's Association (AILA) convention later this month
and get back in touch with Jay or myself
- Citizenship cases if you are applying for citizenship, you have a stronger option than
writ of mandamus, called a peitition for declatory judgement, where
you can argue not just for a judgement but for an approval of your
case as well; in addition, when applying for citizenship, there is a
hard and fast rule vs. the rule of thumb for WOM -- with citizenship,
you should definately file after 120 days
- why WoM works when you file a WOM, it is embarassing for the government, and they
do not want have the courts examine their decision making process; in
many cases, if they get a letter from a law firm that they know will
file in federal court one month later, they will often process the
case; a successful WOM is settled before going to court
- Court appearances you do not have to appear personally in court when you file a writ
of mandamus 99.9% of the time. Joe said he is yet to see a case where the client had to go to court with lawyer and argue WoM case.
- typical cost: between $1,500 to $2,000, plus filing fees of about $400
- Joe Hohenstein's Law Firm Orlow & Orlow is in Philadelphia, and typically represents clients
in the Northeast. Joe can take individual emails at joe@orlow.com;
because there may be a lot of emails, please allow for a delay in the
response. If the questions are get to be more detailed, he would talk
about treating them as an initial consultation, which is $100.
What can be done collectively:
The issue with
name checks is not funding, but an institutional culture that believes
that our issues are unimportant and that should not be addressed
because it might impact the ability to find the "needle in the
haystack" threat to security. What is needed to combat this is to
debunk this argument, so our collective efforts might focus on working
with non-profits to study this issue in more detail, as well as
identify members of Congress who might help.
This thread is closed is its redundant with other thread dealing with this issue.
To join a group of individuals and co ordinate efforts, go to this thread and signup :FBI name check delays signup (http://immigrationvoice.org/forum/showthread.php?t=898)
These notes below were prepared by Randall after the conference call.
JOIN THIS GROUP
To join a group of individuals and co ordinate efforts, go to this thread and signup :FBI name check delays signup (http://immigrationvoice.org/forum/showthread.php?t=898)
Also, there is a Yahoogroups group called namechecktracker created for communicating and co-ordinating. There are nearly 100 members stuck in name check delays of 485 filing.
Notes based on yesterday's conference call:
This is only notes prepared based on legal opinion of a lawyer who specializes in Writ of Mandamus cases against the USCIS for citizenship cases as well as family based and employment based greencards. This most not be construed as any kind of attorney client relationship.
- Priority Dates and Writ of Mandamus:
In employment based immigration cases, if your priority date is not current then the chances of success by filing writ of mandamus are negligible. To have a successful Writ of Mandamus, you need to have your priority date current. Otherwise the USCIS will respond to WoM by saying that the case is not actionable and a decision cannot be made until the case becomes current per visa bulletin.
- Your Case:
A writ of mandamus is best for clean cases (where there are no
criminal arrests, or more importantly, convictions) because a writ of
mandamus only compels the government to make a decision; it does not
say what the decision should be
- How long have you been waiting whether to pursue a writ of mandamus depends on how long you have
been waiting on your case (and for employment based cases, if your
priority date is current). Rule of thumb: waiting less than 1 year -
not advised unless continued wait would cause harm; 1 - 2 years -
should consider WOM; 2+ years - it's time to file
-Possibility of Class action because of the individual nature of a writ of mandamus (as noted in
the above 2 points), and because of the difficulty in getting a
national jurisdiction, WOM does not easily lend itself to a class
action; Joe Hohenstein(Orlow and Orlow) will follow up on this in more detail at the American
Immigration Lawyer's Association (AILA) convention later this month
and get back in touch with Jay or myself
- Citizenship cases if you are applying for citizenship, you have a stronger option than
writ of mandamus, called a peitition for declatory judgement, where
you can argue not just for a judgement but for an approval of your
case as well; in addition, when applying for citizenship, there is a
hard and fast rule vs. the rule of thumb for WOM -- with citizenship,
you should definately file after 120 days
- why WoM works when you file a WOM, it is embarassing for the government, and they
do not want have the courts examine their decision making process; in
many cases, if they get a letter from a law firm that they know will
file in federal court one month later, they will often process the
case; a successful WOM is settled before going to court
- Court appearances you do not have to appear personally in court when you file a writ
of mandamus 99.9% of the time. Joe said he is yet to see a case where the client had to go to court with lawyer and argue WoM case.
- typical cost: between $1,500 to $2,000, plus filing fees of about $400
- Joe Hohenstein's Law Firm Orlow & Orlow is in Philadelphia, and typically represents clients
in the Northeast. Joe can take individual emails at joe@orlow.com;
because there may be a lot of emails, please allow for a delay in the
response. If the questions are get to be more detailed, he would talk
about treating them as an initial consultation, which is $100.
What can be done collectively:
The issue with
name checks is not funding, but an institutional culture that believes
that our issues are unimportant and that should not be addressed
because it might impact the ability to find the "needle in the
haystack" threat to security. What is needed to combat this is to
debunk this argument, so our collective efforts might focus on working
with non-profits to study this issue in more detail, as well as
identify members of Congress who might help.
This thread is closed is its redundant with other thread dealing with this issue.
To join a group of individuals and co ordinate efforts, go to this thread and signup :FBI name check delays signup (http://immigrationvoice.org/forum/showthread.php?t=898)