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FAQs on July 2007 I-485 Filing and Potential Lawsuit
Posted
Jul 03, 2007
| Updated Jul 12, 2007
©MurthyDotCom
The American Immigration Law Foundation (AILF) has stated that it has been
authorized to file the class action lawsuit in response to the USCIS refusal
to accept employment-based I-485 applications starting from July 2, 2007.
The Murthy Law Firm cannot participate in filing the lawsuit, since we only
practice U.S. immigration law and we are not litigation specialists.
This is explained in more detail below. AILF
will likely work with a litigation law firm that will file the lawsuit with
AILF attorneys leading the project.
©MurthyDotCom
We believe in the mission and the work of AILF and in supporting the
immigrant community to render justice when there has been harm. We at the
Murthy Law Firm will guide the immigrant community in its participation in
the potential lawsuit. See
AILF's Legal Action Center : Visa
Bulletin Litigation
for more information and regular updates on this lawsuit.
©MurthyDotCom
NOTE
:
The information provided below is of a general
nature and may not apply to any specific circumstance. It is not
to be construed as legal advice nor presumed to be indefinitely up to date.
Questions and answers were accurate and timely when they were posted.
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Q&As are divided under the following sections :
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1. Impact of the I-485 Filing in July 2007
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2. General Potential Class Action Lawsuit Questions
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3. Other Issues, like July 2nd Filing / October Visa Bulletin,
Etc
Why is the Murthy Law Firm not filing the lawsuit on its own?
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There are
a few reasons
that
Murthy Law Firm will not be filing the lawsuit.
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The Murthy Law Firm’s focus is the exclusive practice of U.S. immigration
law. We are not litigation specialists. Our first thought was to partner
with a litigation law firm to file the class action lawsuit. Almost
immediately, however, we learned that the American Immigration Law Foundation
(AILF) was going to file the lawsuit. AILF has the experience to
successfully file lawsuits against the government in the area of U.S.
immigration law. AILF also has the reputation for taking on only cases that
they believe have a potential valid legal claim, and to seek justice with no
commercial gain for themselves, whatsoever. As a member of the Board of
Trustees of AILF, Attorney Murthy has been in regular communication with
AILF during this time of difficulty for you. So, we at the Murthy Law Firm
are working closely with AILF to ensure that the immigrant community’s
interests are being protected.
©MurthyDotCom
Another important reason for not undertaking to organize this suit
ourselves, is that it is our understanding that law firms filing lawsuits
against the government will have their clients’ cases scrutinized, with
individuals and employers receiving many more requests for evidence (RFEs),
etc. So, in the interest of our clients, we believed it was best for us to
work closely with AILF to better serve you and protect your interests.
©MurthyDotCom
NOTE : There may be some confusion about this,
and we want to clarify. The Murthy Law Firm cannot file the lawsuit on its
own behalf, as it cannot be the PLAINTIFF. It can, however, file it on behalf
of its clients. We have decided (like many other firms) that AILF is the
best organization to do this, as stated above. We will be supporting and
guiding the filing.
1. Impact of the I-485 Filing in July 2007
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Denial or Rejection of the I-485 Filing by USCIS
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Q. If we file, is USCIS going to deny the application, or simply send it back
saying dates are not current?
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A: They should send it back with a rejection stating that the dates are not
current. This should be treated no differently from a case filed at any other
time when the dates were not current. It should be rejected entirely, not
accepted and then denied.
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Filing Fees and Government Checks
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Q. If the I-485 is rejected, am I going to lose the
filing fees
for the I-485 and other forms?
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A. No. If the I-485 is rejected, the entire filing should be returned with
the filing fees. There is some chance that the I-485 package could be
accepted by the USCIS mailroom in error. In that event, the filing fee
checks would be cashed. Then, most likely, one could obtain the EAD
and AP extensions each year. So there is a potential benefit if the I-485
case is issued a receipt notice.
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Future I-485 Filings Not Impacted Negatively
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Q. Suppose we submit the I-485 application in July 07 and USCIS, as per their
announcement, rejects the application. Would this, in any way, adversely affect
future I-485 application filing / I-485 adjudication?
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A. It should not adversely affect any future I-485 filing. Once the priority
date becomes available again, a new I-485 can be filed even if there has not
been a resolution to the lawsuit. The attempt to file and participate in the
potential class action lawsuit should not impact the decision in the new
I-485 filing. The attempted filing should not, in and of itself, create a
legal basis for the denial of a later filing.
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H1B Extensions Allowed
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Q. Is there any issue for getting further H1B extensions, as I-485 was
rejected and no longer pending?
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A. No. Because the I-485 is being rejected, rather than accepted and denied,
the H1B extensions would remain available based upon the pending green card
case. If one obtained the I-140 petition, then s/he is
entitled to the 3-year H1B extension, based on the I-140 petition approval
and the priority date no longer being current.
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Losing the Lawsuit - Any Impact for my Future I-485
Filing?
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Q. If we have to file again, just in case the result of the litigation is
not in our favor, what do we need to do at that time?
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A. The case would be filed as it would have been if this entire incident had
not occurred. It would be filed as a regular I-485 case, with the slight
difference of answering "yes" about previous adjustment-of-status
applications. The government filing fees and other costs are as applicable
at that time.
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Negative Repercussions from Possibly Losing Lawsuit?
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Q. If the I-485 is rejected now, then, when we file I-485 again, if the
priority date becomes current before the class action lawsuit is over or if
AILF loses the lawsuit, will it have any kind of negative effect on the
case?
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A. It should be treated separately, and the I-485 should be reviewed under
standard rules of adjudication.
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Rejection Must Simply be Mentioned in Future Filing
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Q. Once the 485 is rejected because of unavailability of visa numbers, do we
have to mention that in future I-485 applications?
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A. Yes. The I-485 asks a specific question as to whether an individual has
previously applied for adjustment of status. It uses the term "applied," so
the proper answer would be "yes." This should not, however, affect the person's obtaining the I-485 approval if s/he is otherwise eligible for the
I-485 approval later.
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Travel after I-485 Filing
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Q. Will I be able to travel if I participate in the lawsuit?
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A. Yes, if one
otherwise
was eligible to travel.
One needs to
maintain his/her nonimmigrant status and travel in that capacity. For
example, a person with an H1B approval notice must obtain a valid H1B visa
stamp in the passport to be able to reenter
the U.S.
in H1B status.
©MurthyDotCom
Underlying LC and I-140 Petition Not Impacted by I-485
Filing
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Q. If we decide to file the I-485, with the knowledge that it is going to be
rejected, will USCIS reject I-485 application only, OR will it reject
everything, including labor certification and I-140 approval?
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A. If the I-485 is rejected, the labor certification approval and/or I-140
approval will remain valid. A pending I-140 petition will remain pending and
will be decided under standard procedures. If the I-140 is filed
concurrently with the
I-485 adjustment application, and it contains a proper,
separate filing fee, then it should be accepted and processed under
standard procedures. The USCIS is supposed to separate and reject only the
I-485 in this scenario.
2. General Potential Class Action Lawsuit Questions
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Advantages / Disadvantages in Filing Lawsuit
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Q. What would be possible advantages and disadvantages / detriments of
participating in a class action suit?
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A.
There may be other advantages or disadvantages, but we can think of the
following at this time:
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a) Possible Advantages of the Lawsuit:
+ One becomes a named plaintiff or a plaintiff in the initial filing for the class
certification
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+ One has a better chance of forcing the government to accept the I-485 for processing if
included in the lawsuit and the lawsuit is successful
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+ One would obtain EAD and AP earlier for all eligible family members who filed the
I-485
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+ One gains knowledge of having done 100 percent from our side, and not simply waited and watched
while things happen. You take matters in your own hands!
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b) Possible Disadvantages
of the Lawsuit:
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+ USCIS will examine each I-485 more carefully, so that gray areas or
discretionary cases have less chance of success. Examples are those
with criminal issues or other complications that make their cases more
problematic.
©MurthyDotCom
+ USCIS may cash some checks by incorrectly accepting the cases for
processing and then deny them later. Even here there is an advantage and a
disadvantage. The advantage is that an individual and her/his family can get EADs and AP
extensions each year until the USCIS realizes its error and denies the case.
A disadvantage is losing the filing and legal fees, but the LC and I-140 can
still be used to file a new I-485 when the priority dates become current for
the principal applicant again.
©MurthyDotCom
+ One must still have a job offer with the original
employer to file a new I-485 again.
©MurthyDotCom
+ Fears of the government's "taking revenge," historically,
have
not proven to be
valid,
since one remains eligible for any benefits available under law. It is
illegal to deny a person an immigration benefit, since the law allows
individuals
to sue when they have been deprived of their rights. The U.S. Constitution
protects life, liberty, and property, and allows a person to enforce any such
loss by using the legal system, or due process of law.
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Timing of Filing AILF Lawsuit
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Q. When are we going to file the lawsuit?
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A. This depends upon AILF and how quickly they obtain the needed information
and feel that they are properly positioned to file. We do not have a time
estimate at this point.
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Timing to Get a Decision on the Lawsuit
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Q. How long would it take to get a result from the lawsuit?
A. This, too, is unknown. Lawsuits can drag out for years, or they are
sometimes resolved quickly.
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Legal Fees and Filing Fees for the Lawsuit
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Q. I understand that you offer participants (existing clients) in the lawsuit to pay legal fees
for adjustment of status only once through the Murthy Law Firm, but are
there any other fees we, as participants, would be responsible for, e.g.,
legal fees to the counsel?
©MurthyDotCom
A. AILF is a nonprofit organization. They are not charging for this work. AILF's work is all funded
through donations, usually from law firms, including
the Murthy Law Firm. While not required, we think that those who
participate in the lawsuit should consider making a donation
to AILF, even if it is
small, to help fund this effort. There is strength in numbers, and
if enough people give even $100- $200, it will raise a substantial amount of
money and defray AILF's costs considerably. That way, they can continue
their work and help others in the future. They may also be able to answer
questions from those of you who have been contacting them directly,
since they are a nonprofit with a small staff.
©MurthyDotCom
Plaintiff Status Required to File I-485? Can I Just
Wait and See?
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Q. If I decide to file for I-485 in July 2007, is it necessary to be a plaintiff
to take advantage of the AILF lawsuit? IF I decide to file I-485 but not
to become a plaintiff, are there any advantages or disadvantages? What if I am
eligible to file, but choose not to do so?
©MurthyDotCom
A. You can file the I-485 but you can decide not to be a named plaintiff.
There are "named plaintiffs" and other class members. Being a class member,
without being a named plaintiff, means that one may still be covered
under the lawsuit and given certain rights as a plaintiff / affected group, if
the judge certifies the "class," which it is believed is likely to happen.
©MurthyDotCom
If, for some reason, the lawsuit is not certified as a "class action lawsuit,"
then only those who have actually participated in the lawsuit as named
plaintiffs will be able to reap the benefits from a possible positive
outcome of the AILF lawsuit. Of course, there are no guarantees of any
positive outcome in any such possible AILF lawsuit.
©MurthyDotCom
No one is required to participate in the lawsuit, even if s/he did try to
file the
I-485. It is just that the purpose of filing the I-485 is to
retain the ability to assert a legal claim, and participation in the lawsuit
is the most likely way to assert that claim.
©MurthyDotCom
Most likely, if you do not file the I-485 at all, there is less chance of being able to enjoy any benefits from the class action lawsuit,
even if it is successful.
If
the
lawsuit is successful,
it is possible that a judge may grant every
affected person to file the I-485 within 10 or 15 days of the decision, even for those who decided not to file the I-485 due
to the USCIS's refusal to accept I-485s in July. Our understanding is that
AILF is willing to represent as plaintiffs at this time, only those who have
attempted to file the I-485 during July 2007, since there is some case law on
this issue that may protect those who attempted to file during the eligible
period of July 2007.
[See the most recent Updates on this important topic on our
AILF Lawsuit page.]
©MurthyDotCom
Scrutiny of My I-485 by Filing Lawsuit
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Q. AILF says that your case may come under scrutiny if you take part in the
lawsuit? What kind of scrutiny?
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A. The scrutiny is for the same issues that are ordinarily appropriate for
USCIS adjudication. This includes, among others, status issues, matters
related to the existence of a bona fide job offer, and any criminal history.
Persons whose cases require that the USCIS favorably exercise discretion, or
who otherwise have substantial vulnerabilities in their cases, may wish not
to participate in the lawsuit.
3. Other Issues, like July 2nd Filing, October Visa Bulletin, Etc
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Cases Filed on July 2, 2007 - No USCIS Receipts So Far
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Q. Have you gotten any receipts or rejections for cases filed before the
Revised Visa Bulletin announcement was made?
©MurthyDotCom
A. As yet, neither receipt notices nor rejections arrived
from the USCIS
on any July 1st or 2nd, 2007 cases filed at USCIS, to the
best of our knowledge.
©MurthyDotCom
October Visa Bulletin
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Q. Is there any indication of the priority dates for
October 2007?
©MurthyDotCom
A. No. However, people should not be under the mistaken assumption that the
October Visa Bulletin will show "all current," like the initial July 2007
Visa Bulletin. While a new allocation of visa numbers becomes available at
the start of each new fiscal year, the numbers are not all available at the
beginning of the year. It is not like the H1B cap numbers. The U.S.
Department of State is supposed to set appropriate cutoff dates to ensure
that the numbers will last for the entire year, yet not be wasted. They can
only use 27 percent of the numbers during each of the first three quarters of the
year. Thus, October 2007 could reflect substantial retrogression,
particularly for the traditionally retrogressed countries and categories.
©MurthyDotCom
Senators / Congresspersons Should be Contacted
©MurthyDotCom
Q. Is it a good idea to write to our senators and/or congressman, urging them to
intervene and request USCIS to accept I-485s in July?
©MurthyDotCom
A. Yes. It would be helpful for senators and congresspersons to know the impact
that the DOS/USCIS action has had on individuals and businesses. It may be
helpful to point to the letters sent to USCIS and DOS by
Congresswoman Zoe
Lofgren. Representative
Lofgren is the Chair of the House Subcommittee on Immigration. She is also a
former immigration attorney and an AILA attorney, herself. In addition to the
legal points made in Representative Lofgren's letters, it may be helpful to
personalize this situation in terms of your own expenditures of time, money,
any work related-impact, any rearranged travel plans, and general anguish
and disappointment in the U.S. immigration system, when contacting your
representative in Congress. If appropriate, it may be helpful to mention the type of work
you do, particularly if it is something that is of significant value
to the United States and her citizens.
©MurthyDotCom
What to Do Now? I am Still Confused!
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Q. What do I do now, since I am not sure how to proceed?
©MurthyDotCom
A. At this point, one must make her/his own decision, if not
already
filed. We understand that there
is not much time, and there has been a lot going on in the last few days. Those who wish to file the I-485 must do
so before the end of July 2007.
©MurthyDotCom
So, to summarize, the available choices are:
-
File now, with the expectation that the petition will be rejected, and then
join a potential class action suit; or
-
Just wait for immigrant visa numbers to become
available at some point in the future and file at that time.
We Know Your Immigration Matters!
SM
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