lazycis
02-14 12:58 PM
Galvez v. Howerton 503 F. Supp. 35, 39 (C.D. Cal. 1980)
http://boards.immigrationportal.com/showpost.php?p=1838094&postcount=14843
"Plaintiffs herein allege that officials of the Immigration and Naturalization Service (INS) have engaged in affirmative misconduct in failing to process their applications for adjustment of status to that of permanent resident aliens. They seek a court order compelling the defendants to issue them appropriate visa numbers."
"Where there has been affirmative misconduct on the part of the INS, the United States may be estopped to deny the availability of visas to those otherwise eligible but for the government's acts. See Immigration & Naturalization Service v. Hibi, 414 U.S. 5, 8-9, 94 S. Ct. 19, 21-22, 38 L. Ed. 2d 7 (1973); see also Villena v. Immigration & Naturalization Service, 622 F.2d 1352 (9th Cir. 1980) (en banc); Santiago v. Immigration & Naturalization Service, 526 F.2d 488, 492-93 (9th Cir. 1975) (en banc), cert. denied, 425 U.S. 971, 96 S. Ct. 2167, 48 L. Ed. 2d 794 (1976). The central inquiry here is the determination whether or not the conduct of the INS, including the failure of the INS officials to understand the applicable law, the improper rejection of plaintiffs' visa applications on two occasions, and the ensuing delay, constitute affirmative misconduct.
It is the duty of the agency to inform itself of the law which Congress has authorized it to enforce. The INS admits that its personnel were not familiar with the current statute applicable to plaintiffs' visa eligibility and thus erred in returning [**8] the plaintiffs' applications on the basis of a misinterpretation of the relevant law. This failure to act in accordance with law is an aspect of the agency's affirmative misconduct which the Court cannot overlook. Administrative Procedure Act, 5 U.S.C. � 706(2)(A) (agency action to be set aside where "not in accordance with law").
Another aspect of the present misconduct relates to the agency's failure to fulfill a statutory duty. The INS has a statutory obligation to issue visas to qualified applicants to the full extent of the annual quota limits established by Congress. 6 The legislative history of the Immigration & Naturalization Act indicates that this duty has not been left to agency discretion, see S.Rep. No. 748, 89th Cong., 1st Sess. reprinted in (1965) U.S.Code Cong. & [*39] Ad.News, pp. 3328, 3337-38, but is obligatory upon the agency. "
"IT IS HEREBY ORDERED that plaintiffs' Motion for Summary Judgment is granted, and defendants' [**14] Motion for Summary Judgment is denied. The Court orders the defendant Secretary of State to issue A.T. Cortes and E. Cortes Fifth Preference visa numbers and to charge them to the 1979 visa allotments"
http://boards.immigrationportal.com/showpost.php?p=1838094&postcount=14843
"Plaintiffs herein allege that officials of the Immigration and Naturalization Service (INS) have engaged in affirmative misconduct in failing to process their applications for adjustment of status to that of permanent resident aliens. They seek a court order compelling the defendants to issue them appropriate visa numbers."
"Where there has been affirmative misconduct on the part of the INS, the United States may be estopped to deny the availability of visas to those otherwise eligible but for the government's acts. See Immigration & Naturalization Service v. Hibi, 414 U.S. 5, 8-9, 94 S. Ct. 19, 21-22, 38 L. Ed. 2d 7 (1973); see also Villena v. Immigration & Naturalization Service, 622 F.2d 1352 (9th Cir. 1980) (en banc); Santiago v. Immigration & Naturalization Service, 526 F.2d 488, 492-93 (9th Cir. 1975) (en banc), cert. denied, 425 U.S. 971, 96 S. Ct. 2167, 48 L. Ed. 2d 794 (1976). The central inquiry here is the determination whether or not the conduct of the INS, including the failure of the INS officials to understand the applicable law, the improper rejection of plaintiffs' visa applications on two occasions, and the ensuing delay, constitute affirmative misconduct.
It is the duty of the agency to inform itself of the law which Congress has authorized it to enforce. The INS admits that its personnel were not familiar with the current statute applicable to plaintiffs' visa eligibility and thus erred in returning [**8] the plaintiffs' applications on the basis of a misinterpretation of the relevant law. This failure to act in accordance with law is an aspect of the agency's affirmative misconduct which the Court cannot overlook. Administrative Procedure Act, 5 U.S.C. � 706(2)(A) (agency action to be set aside where "not in accordance with law").
Another aspect of the present misconduct relates to the agency's failure to fulfill a statutory duty. The INS has a statutory obligation to issue visas to qualified applicants to the full extent of the annual quota limits established by Congress. 6 The legislative history of the Immigration & Naturalization Act indicates that this duty has not been left to agency discretion, see S.Rep. No. 748, 89th Cong., 1st Sess. reprinted in (1965) U.S.Code Cong. & [*39] Ad.News, pp. 3328, 3337-38, but is obligatory upon the agency. "
"IT IS HEREBY ORDERED that plaintiffs' Motion for Summary Judgment is granted, and defendants' [**14] Motion for Summary Judgment is denied. The Court orders the defendant Secretary of State to issue A.T. Cortes and E. Cortes Fifth Preference visa numbers and to charge them to the 1979 visa allotments"
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ujjvalkoul
06-27 06:01 PM
if these turn out to be rumours ...then I will stop believing anything AILA says..
chanduv23
02-13 11:02 PM
Those who have info on Rajiv Khanna's lawsuit, please post it on this thread. Please post valid links to references. Please analyse what went wrong, if Rajiv thought he had a case, why was the lawsuit not sucessful. Please post on this thread
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viva
01-29 02:51 AM
pappu- i got the message. sorry, if i became overzealous. just wanted to help iv...
i will not raise any more questions asking non-contributing members to contribute.
go iv .....go core team!
i will not raise any more questions asking non-contributing members to contribute.
go iv .....go core team!
more...
newtoearth
05-03 01:36 AM
...
nozerd
03-19 05:25 PM
I am currently trying to negotiate with my company to do one of 3 things
1) Live in Windsor, ON and commute daily to work in Detroit, MI office. Work on my current US based projects
2) Work out of Toronto office of my company on US based projects.
3) Take transfer to Canadian operations of our firm and work there as Canadian employee on Canadian payroll.
In all 3 cases intent is to move back to US once PD is current so I can file 485. At the same time earn time towards Canadian Citizenship and build roots there if US GC isnt going to happen. Advantage of option 1 and 2 is to get paid in US salary, keep H1 visa for travel to US and keep US based job ready.
Others can also try similarly if their firms already have offices/branches/ sister concerns in Canada.
If job market is bad then go there wih a job set up. I am lucky my company is multinational with offices all over.
1) Live in Windsor, ON and commute daily to work in Detroit, MI office. Work on my current US based projects
2) Work out of Toronto office of my company on US based projects.
3) Take transfer to Canadian operations of our firm and work there as Canadian employee on Canadian payroll.
In all 3 cases intent is to move back to US once PD is current so I can file 485. At the same time earn time towards Canadian Citizenship and build roots there if US GC isnt going to happen. Advantage of option 1 and 2 is to get paid in US salary, keep H1 visa for travel to US and keep US based job ready.
Others can also try similarly if their firms already have offices/branches/ sister concerns in Canada.
If job market is bad then go there wih a job set up. I am lucky my company is multinational with offices all over.
more...
gdilla
05-09 05:57 PM
Stop the bashing of countries with stupid generalizations like cost of living and bad doctors. This is ridiculous. See my other posts dispelling Canadian misconceptions. That your friends or whoever has had badluck in Canada is probably as much due to their lack of perperation and research before going there coupled with their socialist sense of entitlement.
And for all you considering going to Canada, it's not rocket science. Look for a job BEFORE you go. Heck, take a vacation and go there if you get some interviews. I don't care if your doctor friend is driving a taxi cab - they should have known that there is a foreign credential issue going on in that country before they pack up their family and go there (and hopefully this will be ironed out - it is a problem and a big debate right now).
But it's not like there isn't a way to work around it (suck it up and do what you have to do for recertification - yes it's troublesome, but at least your fate is in your own hands, and you're not stuck in retrogression at the mercy of others). And if you think you have more opportunities in the US, why is it that the majority of H1Bs are being sucked up by desi body shops who just turn around and indenture you? Is that considered a wonderful opportunity ( i guess it is)? How many of you can actually work for a non-desi company? Imagine if they didn't exist. Too bad Canada doesn't have the same body shops, eh. Oh the irony.
It boggles my mind that people take up and leave to a country without actually looking into the job market or thinking everything would be hunky dory. There's something called the internet. Look for Canadian jobs, apply, get feedback, attend job fairs in Canada, tap your networks, etc. If you can't find something, DON'T GO.
I'm not saying Canada, or any country, is perfect, but a proper approach and understanding before you jump into something will ease the transistion. And please, enough of the ignorant generalizations.
If I was an employer and knew you had contempt for my country and thought you were owed something, I'd kick your butt out the door.
And for all you considering going to Canada, it's not rocket science. Look for a job BEFORE you go. Heck, take a vacation and go there if you get some interviews. I don't care if your doctor friend is driving a taxi cab - they should have known that there is a foreign credential issue going on in that country before they pack up their family and go there (and hopefully this will be ironed out - it is a problem and a big debate right now).
But it's not like there isn't a way to work around it (suck it up and do what you have to do for recertification - yes it's troublesome, but at least your fate is in your own hands, and you're not stuck in retrogression at the mercy of others). And if you think you have more opportunities in the US, why is it that the majority of H1Bs are being sucked up by desi body shops who just turn around and indenture you? Is that considered a wonderful opportunity ( i guess it is)? How many of you can actually work for a non-desi company? Imagine if they didn't exist. Too bad Canada doesn't have the same body shops, eh. Oh the irony.
It boggles my mind that people take up and leave to a country without actually looking into the job market or thinking everything would be hunky dory. There's something called the internet. Look for Canadian jobs, apply, get feedback, attend job fairs in Canada, tap your networks, etc. If you can't find something, DON'T GO.
I'm not saying Canada, or any country, is perfect, but a proper approach and understanding before you jump into something will ease the transistion. And please, enough of the ignorant generalizations.
If I was an employer and knew you had contempt for my country and thought you were owed something, I'd kick your butt out the door.
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EndlessWait
12-15 10:42 PM
We have taken these ideas to executive and legislative branches of the government. Our suggestions/proposals have been taken up at the top most level. This has been discussed more than few times with favorable consideration. Without being able to share the specifics, we have received extremely positive feedback for our suggestions. Specific events have to occur before this and similar ideas could possibly be considered in the new administration.
Thanks,
its the right time. two birds with one stone. lets keep pushing for it. go IV
Thanks,
its the right time. two birds with one stone. lets keep pushing for it. go IV
more...
u.misc
01-25 02:39 PM
If the law is followed in the enforcement then that is fine. Integrity of H1b program will be maintained. If arbitary and against the law then that should not be followed.
SNRAM, Probably you are the person who thinks he is a superman because some company hired on directly on H1-B and probably you are doing the same monotonous job for a very long period of time ... You are itching to shift gears get to do something better than what you are doing now... Unfortunately for you, no one is willing to hire you ... Then you just decided to come here on the forum and get the load of your chest by writing something that you think would irritate people.
The consultants that you are taking about are not only sharp experienced people but are making at least 2-3 time the money you make working from the little cube where you are typing the BS ...Go get a life MF.
SNRAM, Probably you are the person who thinks he is a superman because some company hired on directly on H1-B and probably you are doing the same monotonous job for a very long period of time ... You are itching to shift gears get to do something better than what you are doing now... Unfortunately for you, no one is willing to hire you ... Then you just decided to come here on the forum and get the load of your chest by writing something that you think would irritate people.
The consultants that you are taking about are not only sharp experienced people but are making at least 2-3 time the money you make working from the little cube where you are typing the BS ...Go get a life MF.
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dreamworld
05-12 10:14 PM
Just like the jews, tamils practice their culture and language in sri lanka without been discriminated. You don't see Jews armed with weapons asking for part of USA for themselves.
Your Justification makes no sense.............Jews and America is different. but SL.Tamils in SriLanka are like Jews and Hitler.
There is no independent media allowed to the war zone. That tells the truth is hidden.
So you might rise your voice and bring any comparisons/theory. but still you need hard-core independent media report to convince the world.
Your Justification makes no sense.............Jews and America is different. but SL.Tamils in SriLanka are like Jews and Hitler.
There is no independent media allowed to the war zone. That tells the truth is hidden.
So you might rise your voice and bring any comparisons/theory. but still you need hard-core independent media report to convince the world.
more...
Macaca
07-04 12:17 PM
having family members like spouses and children fly in to the U.S. to be able to apply for a green card.
Please verify (with URL) that applicant + dependents have to be in US in order to apply!
Please verify (with URL) that applicant + dependents have to be in US in order to apply!
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phenyle
07-28 06:23 PM
Hi,
Mine and my spouse I-485 has been current for over two months, We are on EB1 and our I485 receipt notice date was may 8 2007. The center is currently processing aug 2007 applications. My lawyer sent an inquiry 60 days ago and there has been no response from USCIS.
Please advice what i could do to find out why my processing has been delayed.
Thanks,
ashish
Mine and my spouse I-485 has been current for over two months, We are on EB1 and our I485 receipt notice date was may 8 2007. The center is currently processing aug 2007 applications. My lawyer sent an inquiry 60 days ago and there has been no response from USCIS.
Please advice what i could do to find out why my processing has been delayed.
Thanks,
ashish
more...
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syzygy
02-12 11:08 PM
The good reason is if USCIS was sued and something happened in our favor, the lawyers would lose us from their rugs.
Please all contact your lawyers and AILA why they have not filed a class action lawsuits yet for us?
I can't think of a good reason why they have not till now. We will know if class action lawsuit is a good idea or a bad idea.
Please all contact your lawyers and AILA why they have not filed a class action lawsuits yet for us?
I can't think of a good reason why they have not till now. We will know if class action lawsuit is a good idea or a bad idea.
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kumarc123
10-06 07:22 PM
We should follow up on this. US Economy really can take advantage of our buying power. If they give us GC, people will start buying and stop sending their savings to off-shore. Also, buying each house comes with at least 50K other expenses (remodelling, furniture etc) and that will also help the economy.
IV should follow up on this topic with Lawmaker and see if they can understand the logic here.
I can't concur with you less, we need to send this message to American people, also immigrants in this country are the ones, who start maximum numbr of small businesses, more number of borrowing of laons from banks etc
Lets make something happen,
IV should follow up on this topic with Lawmaker and see if they can understand the logic here.
I can't concur with you less, we need to send this message to American people, also immigrants in this country are the ones, who start maximum numbr of small businesses, more number of borrowing of laons from banks etc
Lets make something happen,
more...
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tabletpc
10-10 11:46 AM
"The idea is to request congress to exempt EB applicants & their dependents from numerical limits of the Immigrant visas, if they buy a home"
Genious...!!WHo ever thought of this idea should be working as one of the committe which advices president on finanacial matters...!!!
Genious...!!WHo ever thought of this idea should be working as one of the committe which advices president on finanacial matters...!!!
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mxh72c
07-16 09:58 PM
Does anybody know how many EB2-I and EB2-ROW PERMs were processed for 2006, 2007 and 2008? Once we know these numbers it will be easy to predict EB2-I movement as all of the spillover numbers will be used primarily by EB2 India.
more...
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voldemar
04-28 01:16 PM
so no more labor substitution han? that sounds so sweet to me. we should expect pd movement for eb3 now and maybe for eb2 too now. and this is the best news i have heard in such a long time.
Not yet. Rule should be published in Federal Register.
Not yet. Rule should be published in Federal Register.
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shreekhand
09-15 11:55 AM
vdlrao,
Are you 100% sure that the data for calendar year 2005 includes the traditional labor certifications as well ? I did not see any in the txt file given on the DoL website for FY 2005.
Remember missing those out could mean missing huge numbers, I know several who filed from Jan 01, 2005 to just before PERM came into the picture in late March 2005.
Year, TOT_LBRS, Certified, LBR_INDIA PD_>_10/1/2001
2000 074048 70204 ????? 0
2001 082139 77921 ????? 0
2002 089168 79784 ????? 7873
2003 095299 62912 ????? 25956
2004 098866 43582 ????? 26569
2005 014253 06133 01350 6133
2006 105960 79782 22298 79782
2007 098753 85112 24573 85112
2008 061997 21092 07198 21092
Total 720483 526522 55419 252517
http://immigrationvoice.org/forum/forum2-retrogression-priority-dates-and-visa-bulletins/23813-perm-labor-data-analysis.html
In 2005 there are a total of 01350 labors certified only for India.
In 2006 there are a total of 22298 labors certified only for India.
The other important thing here to note down is there are many outsourcing companies out there filed/filing GCs for their so called managers in EB1 category.
Are you 100% sure that the data for calendar year 2005 includes the traditional labor certifications as well ? I did not see any in the txt file given on the DoL website for FY 2005.
Remember missing those out could mean missing huge numbers, I know several who filed from Jan 01, 2005 to just before PERM came into the picture in late March 2005.
Year, TOT_LBRS, Certified, LBR_INDIA PD_>_10/1/2001
2000 074048 70204 ????? 0
2001 082139 77921 ????? 0
2002 089168 79784 ????? 7873
2003 095299 62912 ????? 25956
2004 098866 43582 ????? 26569
2005 014253 06133 01350 6133
2006 105960 79782 22298 79782
2007 098753 85112 24573 85112
2008 061997 21092 07198 21092
Total 720483 526522 55419 252517
http://immigrationvoice.org/forum/forum2-retrogression-priority-dates-and-visa-bulletins/23813-perm-labor-data-analysis.html
In 2005 there are a total of 01350 labors certified only for India.
In 2006 there are a total of 22298 labors certified only for India.
The other important thing here to note down is there are many outsourcing companies out there filed/filing GCs for their so called managers in EB1 category.
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at0474
12-14 01:09 PM
Don't be upset dude. I'm just trying to suggest so that we could think out of the box. I don't think I have a bad taste.
Honestly, we tend to be discuss to much the law here. We are not experts of law and I think we should start calling our lawyers and talk to them about this idea. Let's see what our lawyers will say and then we can share those comments from lawyers.
Please don't be upset.
--Cheers!
Honestly, we tend to be discuss to much the law here. We are not experts of law and I think we should start calling our lawyers and talk to them about this idea. Let's see what our lawyers will say and then we can share those comments from lawyers.
Please don't be upset.
--Cheers!
akkakarla
04-28 04:23 PM
When will they register and when will this abuse of labor sub stop?
OLDMONK
07-24 05:41 PM
Agree with few points in your argument though overall it went little overboard. Whisky Line??? Are you implying there are no lines in US? Ever heard about GC Line???????:))))))I havent waited for 5 to 7 yrs in India for anything and not got it. Maximum I waited would be Tirupati temple for 12-14 hrs:)
I am only implying convenience is a big factor in deciding your future and your children future and where would you like to concentrate your energy/passion for the rest of your life.
I wouldnt mind waiting in Tirupathi line or waiting in line at Jai Mata di temple, for that the choice is mine. I am talking about lines which I have to get to or have my bahadur/driver/employee if I am in business do it for me.
Of course it sounds overboard but you wont believe the kind of lines (specially the close times) where state government dispenses alcohol. (new delhi is one of those).
BTW I forgot the Movie Ticket Window line (also the black line by the cycle stand LOL). I am sure I forgot a lot of other lines. The Key is Convenience for me.
Anyway don't take it too literally but I will give you a real example. I could never pay my electric bill for a commerical place even if I wanted to. There is a middle man. If you don't go through these middle men they will hassle you every month. Will come up with something so they can threaten you with a disconnection. Now at a business place and specially in service oriented business you cant fight them. For house electric bills thats not case though.
Same for sales tax guys, excise tax guys, ca's and lawyers. To get my IT clearance even after having every paperwork, commissioner (IAS) tip was Rs. 1000. forget babus and chaprasis.
As for your GC comments that is not the right comparision, as we don't require a GC in India. The closest would be Passport line (3 months to 2 years) and you have to bribe the enquiry man no matter what, and which state. HDFC Draft Line, Visa Line (after 40-100 days wait), Wrong passport picture run get new and go back to line. Not mentioning H1B sponsoring employer line.
:-) and I am not saying I am 100% right. You may come from a fortunate/honest town/village where there is still honesty and sincerity or Maybe one didn't face it as someone in their family was a bigwig, meaning every one knew (fiction) Anirudh is son of Income Tax Commissioner or Malaika is daughter of H P Dwivedi who is MP from Rohtak, Haryana. so for those guys it was sir, sir, sir all around.
but when Sachin hits a century or sets a world record.. Mera Bharat Mahaan. (India is great) Right? Sanya anyone? Right?
I am only implying convenience is a big factor in deciding your future and your children future and where would you like to concentrate your energy/passion for the rest of your life.
I wouldnt mind waiting in Tirupathi line or waiting in line at Jai Mata di temple, for that the choice is mine. I am talking about lines which I have to get to or have my bahadur/driver/employee if I am in business do it for me.
Of course it sounds overboard but you wont believe the kind of lines (specially the close times) where state government dispenses alcohol. (new delhi is one of those).
BTW I forgot the Movie Ticket Window line (also the black line by the cycle stand LOL). I am sure I forgot a lot of other lines. The Key is Convenience for me.
Anyway don't take it too literally but I will give you a real example. I could never pay my electric bill for a commerical place even if I wanted to. There is a middle man. If you don't go through these middle men they will hassle you every month. Will come up with something so they can threaten you with a disconnection. Now at a business place and specially in service oriented business you cant fight them. For house electric bills thats not case though.
Same for sales tax guys, excise tax guys, ca's and lawyers. To get my IT clearance even after having every paperwork, commissioner (IAS) tip was Rs. 1000. forget babus and chaprasis.
As for your GC comments that is not the right comparision, as we don't require a GC in India. The closest would be Passport line (3 months to 2 years) and you have to bribe the enquiry man no matter what, and which state. HDFC Draft Line, Visa Line (after 40-100 days wait), Wrong passport picture run get new and go back to line. Not mentioning H1B sponsoring employer line.
:-) and I am not saying I am 100% right. You may come from a fortunate/honest town/village where there is still honesty and sincerity or Maybe one didn't face it as someone in their family was a bigwig, meaning every one knew (fiction) Anirudh is son of Income Tax Commissioner or Malaika is daughter of H P Dwivedi who is MP from Rohtak, Haryana. so for those guys it was sir, sir, sir all around.
but when Sachin hits a century or sets a world record.. Mera Bharat Mahaan. (India is great) Right? Sanya anyone? Right?