Everything You Need to Know about Writ of Mandamus (Part III)

Now You Are Ready to Roll

Confirmed that you are indeed a victim of governmental inefficiency and your patience have run out, you decide to fight. How? Chances are that you probably never file a lawsuit before. Naturally you will think about a lawyer. Here is today's shocking headline for you: "Lawyers Are Expensive." So you want to do it yourself (DIY). The good news for DIYers is that a WoM is probably even simpler than a divorce suit; and many compassionate people already posted their experiences online (assuming you still have internet connection after spending tens of thousands dollars on immigration).

DIY

Many immigrants successfully filed WoM by themselves and received favorable outcomes. A very helpful post on Immigration.com is probably the grandfather of online DIY resource. Kudos to Publicus!

An article about FBI Name Check on Wikipedia.com is also full of useful information.

The obvious advantage of DIY is the money-saving aspect. You pay $350 filing fee and that’s it. Of course, please feel free to do the calculation:

Additional cost = your hourly wages X the number of hours you spent on researching and preparing the lawsuit.

Lawyer

For outsiders, law practice is all about paperwork. Yes, there is indeed a lot of paperwork involved in WoM suit. After losing the immigration waiting game, you probably have little patience or confidence left to deal with all the WoM-associated paperwork and court procedurals. Here comes the immigration lawyer. And here comes the money talk.

Lawyer's fee dealing with WoM varies, as it does with other type of immigration issues. After shopping around, you can see price tags ranging from 2k to 5k, mostly around $3,000-3,500. The recent trend is that the law firm will file a class action suit on behalf of multiple immigrants. Theoretically, that could bring down the cost to certain extent; but practically, the cost reduction does not significantly reflect in the lawyer fees.

Please also keep in mind that although lawyers may handle the case for you, you will still spend significant amount of time to communicate, collect documents, and research for your case.

Aftermath

Like all the other types of lawsuit, WoM suits yield different results. Nobody has ever done an analysis on the proportion of favorable results. Anecdotally, favorable results seem to lead the way. Unlike many other types of lawsuit, the immigrants will not lose anything because of the unfavorable ruling except the fee associated with the suit. The real scary question is whether a "retaliation" move from the government is coming after the plaintiff in the future. The lawyers, especially reputable immigration lawyers, normally say "no" to this fear, for a good reason. Because no matter how hard we fight for our right, we still believe in this democratic system. That's the basis for us to fight. And so far, no confirmed report of such retaliation, not even a hint. One important fact that can assure the potential filers is that in order for USCIS to retaliate by rejecting your application, there has to be a strong reason for them to do so. Take Permanent Residency and Citizenship cases as example, if you don't have any "grey area" in your immigration history or any criminal background, there is no reason to be afraid. However, here comes the big "However". Anything can happen in this immigration depression era, right in front of your eyes.

Everything You Need to Know about Writ of Mandamus (Part II)

Who Should/Could/Need/Have to File the WoM about Immigration Matters?

Before you decide to file the WoM, you should evaluate your situation to make sure you are “qualified”. Because the base for the lawsuit is that it has taken too long for USCIS to make decision on your case, it is obvious that the key word here is “long”. How long is too long? Unfortunately, there is no rule of thumb. Several things can help you assess your case.

Receipt Date

First, check your Receipt Date (RD). RD is the date on the I-797C form (Notice of Action) you received right after you filed the application. For example, the I-797C form you received after you filed the I-485 Adjustment of Status form listed “September 3, 2004” in the “Received Date” box, your RD for I-485 is, unfortunately, September 3, 2004. RD only reflects how long your case is pending. Retrogression and normal processing time could also be the culprit of delay. For I-485 filers, if your case is not current (in retrogression) or a significant portion of your waiting period is in retrogression, your chance of receiving favorite results from the suit is minimal. You should also check your RD against the Processing Times posted at USCIS website to determine whether the delay is reasonable.

Name Check Starting Date

For most cases, the FBI Name Check process is the single reason for the long delay. So finding out how long you have been stuck in the Name Check process is important. There are several ways to find out the exact date when your nightmare began.

1. The easiest way is of course to call the USCIS Customer Service Telephone: 1-8000-375-5283. However, chances are not great that you will get the answer you need. The USCIS Customer Service is as broken as the whole immigration system. Most times you get a customer representative who knows nothing more than that are known to yourself and you will not get the start date of the Name Check. It is a perfect one-stone-two-birds scenario that both taxpayers’ money and your time are happily wasted. However, sometimes if the call-volume is light or you finally find a dim luck, you can actually talk to an immigration officer (IO) from the regional Service Center where you filed the case. The IO can tell you the exact Name Check starting date.

2. Making an Infopass appointment through USCIS website to talk to a local IO in the local immigration office is a relatively quick and easy way to get the exact date.

3. You can also write to the First Lady office or the U.S. Senators, House Representative who represent your state or district about your heartbreaking story brought you by the Name Check process. In their replies, or the replies directly from FBI, you will see the date when Name Check started. Please note this is the slowest way to get the answer.

Unhelpful Help from Conventional/Administrative Channels

To strengthen the lawsuit, both convention wisdom and lawyers say that you should exhaust all the administrative venues to solve the delaying problem before filing a lawsuit. So how many venues you need to try? Again, no rule of thumb. A significant number out of the numerous agencies listed below should be sufficient.

USCIS Customer Service Telephone
USCIS service request/inquiry
Infopass/Talking to an IO
CIS Ombudsman Case Problem request
The First Lady office
Senator(s) representing your state
House representative for your district
FBI/FBI National Name Check Program (Record Processing Management Division)

There are a few reports from the immigrants that these conventional venues do help. However, more likely you will only receive a “status update” you have known for years, or no response at all.

to be continued...

Everything You Need to Know about Writ of Mandamus (in plain English; Part I)

I'm no lawyer, and this is not a legal paper. Viewer be aware.

Now you understand the beauty of the FBI Name Check delay, it's time to take some serious action. The ultimate action to challenge the FBI Name Check delay is filing a Writ of Mandamus (WoM) lawsuit.

The Definition of Writ of Mandamus (WoM) in Immigration Lexicon

Writ of mandamus (WoM) is a form of lawsuit that forces government to make a decision on cases that have taken them too long to process. In other words, the base for the lawsuit is that the government (defendant) failed to act on the duty owed to the plaintiff in a reasonable timeframe.

How WoM Works

To make a long story short, you, the victim of the unwarranted delay in the immigration process, filed a lawsuit with Assistant United States Attorney (AUSA) at the Federal District Court, against some figure heads from Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), Attorney General, and/or other related agencies, such as FBI (if it is related to Name Check). In other words, you are the plaintiff and the immigration-related agencies are defendants. The court then contacts the defendants (USCIS and co.).

In the past, the defendants would quickly act on your case to shut you up and the lawsuit would be dismissed by the court before any court battle. You win. The new trend is that the defendants don’t act on your case just because there is a lawsuit pending. Instead, they argue back. The federal court will make the final decision, either to ask USCIS to act on your case so that the lawsuit can be dismissed to avoid any deserved federal embarrassment, or, to dismiss your complaint coldheartedly because the judge thinks either your complaint is weak or the USCIS’ argument is reasonable, or both.

Why WoM?

The most common reasons to file the WoM in today’s immigration depression era are: 1) a long delay of Application for Adjustment of Status (I-485; Green Card) mainly due to FBI Name Check process; and 2) a long delay of Application for Naturalization (N-400) due to, duh, FBI Name Check process. Of course, theoretically, any immigration case that USCIS is inapt to process in a reasonable timeframe warrants WoM.

If you find out that your I-485 case or N-400 case has been stuck in the FBI name check process for a lengthy period and it seems there is no light at the end of the tunnel, WoM can provide you more than a fighting chance to push USCIS make a relatively quick decision on your case.

In the past, immigrants filed WoM in federal court and within a few months or even weeks, their background check was cleared; and their Green Cards were ordered or they became the citizens of the U.S. The speedy process the immigrants had enjoyed after filing WoM was the result of USCIS sending expedited name check request to FBI whenever a case is pending in court. (USCIS “outsources” the Name Check process to FBI.)

However, with the WoM cases mounting, the Empire Strikes Back. Beginning from the end of 2006 and early 2007, USCIS has changed the policy not to automatically send expedite request to FBI unless the cases are dealing with one of the following scenarios: “1. Military deployment, 2. Age-out cases not covered under the Child Status Protection Act, and applications affected by sunset provisions such as diversity visas, 3. Significant and compelling reasons, such as critical medical conditions, and 4. Loss of social security benefits or other subsistence at the discretion of the USCIS District Director.”

One would think that would discourage immigrants filing WoM against the Empire. Well, at least the USCIS thought so, but they were completely wrong. Since early 2007, filing WoM to bring the justice into immigrants’ life has becomes a movement. Why? Because no matter how hard the USCIS fights back, the agency is at the short end of the reasoning and justice. It is true that the results from WoM suit would take longer to come out since more immigrants are filing the suit, but in many cases, it is still significantly shorter than waiting to no end. Actually, it is not unusual to see the Name Check has been dragged for longer than 3 years, 4 years, or even 5 years. And currently, the whole process of the lawsuit is about a half year.

to be continued...

Name Check: Everything You Need to Know about This American Nightmare (Part IV)

12 Angry Men

I can almost imagine that when you finally file the WoM lawsuit against the USCIS, a mix feeling of relief and increased anxiety would arouse. A lawsuit is no petty matter, involving numerous hours of preparation even with a hired lawyer in charge. Starting 2007, WoM lawsuits against USCIS see more dismissals and more resistance from USCIS. Conventional wisdoms say that USCIS fights every case to stop the flood at the gate. Good thinking. If immigrants stop filing lawsuits, the only thing will happen is that USCIS and FBI sit back and take their time to act on (or not act on) your cases. USCIS does have an army of lawyers, but the number is not even close to the number of desperate immigrants stuck in the Name Check process. If only one tenth of the Name Check waiters file the lawsuits, the army of USCIS lawyers would be destroyed.

Or they will raise the fee again.

Gandhi

It's no secret that in the whole political system, the legal immigrants have the least power. You heard me right. Even illegal immigrants have more power than legal immigrants in this country. That makes even more important to voice out our displeasure to the broken Name Check process. During Summer 2007's Visa Bulletin Fiasco, immigration communities showed some strengths by using legal and political will to force USCIS reversed some ill-advised decisions. Flower Campaign was delivered. Rallies were held in both coasts. These are encouraging signs that immigrants, especially always-so-quiet employment-based immigrants, finally realize that nobody would "take care of" them if they keep inactive in the political arena. The FBI Name Check delay is one of the most inhumane event has occurred in the U.S. immigration history and it has affected hundreds of thousands of lives and well-beings. Writing to the law makers, local newspapers, and anyone whose voice can be heard is one of the few things you can do to make tomorrow better.

Besides writing your tearful story to the "important people", you also have the option to join groups that using lobby activities to push for the improvement of Name Check process. There is a long way to go, but at least you have companies.

Multi-Year EAD/AP Combo Card

Boys and girls, it’s the math time. (Dear viewers, I assume you are an immigrant so the little math here would be just a piece of cupcake.)

Want you know how much left in my bank account after years of immigration struggle? If you care, you may remember that our name check has been pending for 3 years. We (my wife and I) applied the I-140/485/EAD/AP in 2005. In 2005, the cost for EAD and AP application together is $350 ($180 and $170 respectively) for each person. So besides attorney fees, the cost of applying EAD and AP was $700. The attorney fees were $250 for each form, which adds up to $1,000. In 2005, we spent $1,700 on EAD/AP alone.

In 2006, we figured there was no way we would have to wait another year, so we got lazy and still let the attorney handled the process, another $1,700. We assumed we would be broke, but at least we would have Green Card.

In 2007, after two years in the Name Check mud hole, we realized that we’d better be smart with our money, otherwise we’d be broke AND without Green Card. We tried DIY successfully, and it ONLY cost $700.

Not long after I enjoyed the self-acclaimed Immigration Handyman came the USCIS fee increase, which pretty much single-handedly triggered the famous July Filing Fiasco. Now we are facing the new fee schedule: $340 for EAD and $305 for AP. This year’s cost would be a meager $645 each person and $1,290 for two person.

A three-year waiting only costs us $1700 + $1700 + $700 + $1290 = $5390.

The old I-140 application fee was $195; the old I-485 fee was $395/person and $790 for two; the attorney fee minus the EAD/AP forms was $4,000.

The total cost so far was $5390 + $195 + $790 + $4000 = $10375.

Now you know part of the reasons I need a second mortgage?

Less attorney fees, the total amount submitted to USCIS directly is $3,675.
You would assume after you spent over $3,500, you would get something better than depression.

Mid-December 2007, Mr. Michael Aytes, one of the USCIS high officials, sent out a teaser notion that USCIS is “looking into” issuing an EAD card that covers multiple years and also functions as an AP document. Good news indeed, but read closely and carefully, you would notice that the multi-year card seems only intended to the folks who were hit by the retrogression. Waiting in the visa retrogression is horrible, and these folks definitely deserve any break they can get. As for Name Check waiters, you are potential terrorists so please keep paying USCIS thousands $ on yearly basis until someone can pick up your file. Thank you very much.

Name Check: Everything You Need to Know about This American Nightmare (Part III)

Taking Action

You feel hopeless, but it doesn't mean you should stop fighting. After all, this is one of the greatest countries on the planet earth and we have a great system for average people, yes, even for aliens. The most direct solution is filing a Writ of mandamus (WoM) lawsuit. WoM is a form of lawsuit that forces government to make a decision on cases that have taken them too long to process. I will cover WoM in more details later.

Law & Order: Special Victim Unit

If you did everything accordingly to an I-485 application or N-400 application, your case is current, and it has been delay for over 3 months outside the processing time in the relevant Service Center, it's sad and safe to say that 99% of the chance you are the victim of the FBI Name Check delay. Of course, you still need to find out the real reason for the delay of your case. Also it is important to know how long you have been stuck in the Name Check process. There are several ways to find out the exact date when your nightmare began.

1. The easiest way is of course to call the USCIS Customer Service Telephone: 1-8000-375-5283. However, chances are not great that you will get the answer you need. Most times you get a customer representative who knows nothing more than that are known to yourself and you will not get the start date of the Name Check. However, sometimes if the call-volume is light or you finally find a dim luck, you can actually talk to an immigration officer (IO) from the regional Service Center where you filed the case. The IO can tell you the exact Name Check starting date.

2. Making an Infopass appointment through USCIS website to talk to a local IO in the local immigration office is a relatively quick and easy way to get the exact date.

3. You can also write to the First Lady office or the U.S. Senators, House Representative who represent your state or congressional district, talking about your heartbreaking story brought to you by the Name Check process. In their replies, or the replies directly from FBI, you will see the date when Name Check started. Please note this is the slowest way to get the answer.

Message in Many Bottles

Almost at the same time, you need to prepare an intense letter campaign besides regular call to USCIS Customer Service Center or date with an Immigration Officer in your local USCIS office. Calling and face-to-face meeting with these employees are normally a waste of your time, but you need to do so to get some basic information and establish a record that shows you are trying everything to solve the delay problem.

You can choose to write to all or some of the agencies listed below asking for help, describing the horrible situation brought by the delay of action from USCIS. Writing one letter is never enough. It normally takes at least a couple of months for these "public servants" to respond. Don't wait. Keep reminding them that you are asking help.
CIS Ombudsman Case Problem request
The First Lady office
Senator(s) representing your state
House representative for your district
FBI/FBI National Name Check Program (Record Processing Management Division)

There are a few reports from the immigrants that these conventional venues do help. However, more likely you will only receive a "status update" you have known for years or no response at all. Again, you still need them, especially if you are forced to file WoM to salvage your sanity.

To be continued...

Name Check: Everything You Need to Know about This American Nightmare (Part II)

Name Check Basics

The process is like this: USCIS received your application and started to do a few security background checks using available databases, such as fingerprint checks and Automatic Biometric Identification System checks. Coming out clean, Congratulations! USCIS then forwarded your record to FBI using their National Name Check Program.

The FBI National Name Check Program is (NNCP) a contractor to USCIS, providing name check service to not only USCIS, but other federal agencies. You would think USCIS should be on their priority list because it has huge impact on millions of immigrants' life every year. Guess again. USCIS is no way near the NNCP's top priority. To FBI's NNCP, USCIS name check requests are at Level 3:"Routine work and requests from major customers without specific deadlines."

Don't you so glad to realize that "without specific deadlines" is exact what immigrants need?

The FBI NNCP runs your name against their Central Record System (CRS). First, FBI checks with a Universal Index (UNI) contained in the Automated Case Support (ACS) system. For most of the times, your name would come out with a "No Record" result. Don't smile yet. That was only from their "Main" files. A "Main" entry means that the name is directly involved in one of FBI's criminal investigations. The vast majority of the names should come out clean against "Main" files. FBI also checks your name with their "Reference" files, which is the true warm bed for your nightmare. The "Reference" files have entries that merely mention or reference someone's name linked to a "Main" file. And the worst of all, in most cases, that name is not even your name! It could be merely the same name as yours, but also could be just a fraction of your name, or could be just similar to your name.

What? Are you kidding?

According to FBI's own document, "the names are searched in a multitude of combinations, switching the order of first, last, and middle names, as well as combinations with only the first and last names, first and middle names, and so on." Yes, you heard them right. Say your name is Tony Blair. If they find a terrorist named Blair Anthony, you are nailed! Isn't that fun? If your name is Kareem Abdul-Jabbar and a criminal named Kareem Jabbar-Abdul on the UNI, you are nailed!

Now Tony Blair gets a "name-match" with a terrorist Blair Anthony, and he becomes a "hit" using FBI's jargon. An FBI agent will do a manual search against the humongous CRS to find more information and determine whether the "hit" is indeed a national threat. In 1-2 months, most "hits" are cleared and returned to USCIS as "No Record". According to FBI's own count, after this stage, about 90% of the names should be cleared and returned to USICS. (This is totally not true. Either FBI/USCIS had no idea how to do math or FBI/USCIS simply did not tell the truth. An analysis can be found later in this blog.)

The rest of the story, unfortunately, you already knew. Waiting, long suffering, depression, and any negative feeling you can think of. If you fall into that 10% category who are identified and confirmed as "hits", the only hope you have is to wait some FBI rookies open your case. In other words, someone within FBI has to review your case, gather information, and make a final clearance decision. The problem is that FBI is so short-handed that chances are you have to wait infinitely to get someone take on your case.