Success in EB-2 Class Action Lawsuit
Posted May 13, 2000

We have good news to share with you regarding a recent case that has been won by certain attorneys who are members of the American Immigration Lawyers Association (AILA). The suit, Chintakuntla et al. v. INS, Case No. C-99-5211 MMC, N.D. CA, successfully challenged the INS denial of employment based second preference classification (EB2) in I-140 Petitions where the approved Labor Certifications (LCs) merely stated that the position required a B.S. plus 5 years of work experience, rather than specifically mentioning a Master's degree. The Court accorded class certification and issued a permanent injunction against the INS in this lawsuit.

Judge Maxime Chesney, United States District Judge for the Northern District of California, issued a final order on May 4, 2000, requiring the INS to henceforth consider all LC applications that contain the words "Bachelor's Degree plus 5 years of experience" to be considered as requiring the equivalent of a Master's Degree and therefore should be accorded EB-2 classification for Priority Date purposes and to file the Adjustment of Status.

The May 4, 2000 Order is explained below, divided into sub-topics for ease of review and understanding:

Definition of EB-2:

Quoting the INS' own regulation, the Judge agreed that the INS should have accorded EB-2 not merely to those possessing an advanced degree (Master's degree or its equivalent) but also to those who possess a Bachelor's Degree or a foreign equivalent Degree followed by at least of five years of progressive experience in the specialty.

The court said that the members of the class action lawsuit who are immediately able to benefit from this lawsuit are the following two groups of people:

(a) Those foreign nationals whose I-140 Petitions were still pending before the INS on March 20, 2000 (where the I-140 Petition is pending either with an INS Service Center or before the Administrative Appeals Office). The court held that a case would be considered to be still "pending" if an appeal has been filed or the time for filing a notice of appeal had not expired as of March 20, 2000 and an appeal was thereafter filed timely.

(b) Those foreign nationals whose I-140 Petitions were denied by the INS or by the AAO on or after July 1, 1997, denying the EB-2 Visa Petition and for whom there is not already pending a civil action seeking judicial review of the final INS denial.

Where I-140 Petitions Are Pending with INS as of March 20, 2000:

All those members in Class (a) above need not do anything since the INS has agreed to adjudicate all I-140 Immigrant Petitions in accordance with its March 20, 2000 Memorandum and accord the necessary relief by granting EB-2 to such foreign nationals.

Where I-140 Petitions Were Denied EB-2 on or after July 1, 1997:

For all members in Class (b) above, the INS is required to file, before July 4, 2000, and publish in the Federal Register a notice allowing such class members the opportunity to file late Motions to Reconsider. Such members will have to file a Motion to Reconsider with the INS, on or before November 1, 2000.

The INS will accept an application for Adjustment of Status, which can be accompanied by applications for the Employment Card and the Advance Parole, even before the INS has approved the Form I-140, as long as the class member in Class (a) or (b) is otherwise eligible to apply for Adjustment of Status, has a current Priority Date when the I-140 Petition is filed and the I-485 application is received by the INS on or before November 1, 2000. This includes members of the immediate family (spouse and children) who are allowed to submit Adjustment applications along with the principal beneficiary. If for any reason the I-140 is ultimately denied, the Adjustment application will also be denied.

A person who is filing an Adjustment application based on this class action lawsuit, prior to the approval of Form I-140, is required to send the package directly to the attention of the Service Center Director, explaining the date on which the foreign national's correct, current non-immigrant visa status is scheduled to expire and the INS will adjudicate Form I-765 for the Employment Authorization by the day before the date on which the visa applicant's current Employment Authorization is scheduled to expire. The INS will then have to issue the employment and travel authorization documents.

Those Filing LCs After March 20, 2000:

Shortly after the lawsuit was filed, the INS issued a memorandum on March 20, 2000 in order to address the concerns of the lawsuit and agreed that they would henceforth accord all LC applications that mentioned either a Master's Degree or a B.S. plus five years of experience as an EB-2 case.

Expedited approval Possible in Age-Out Cases:

The INS has agreed to expedite the adjudication of a class member's Adjustment application, to the extent the INS can feasibly do so, if the class member provides the INS 120 days written notice, accompanied by a birth certificate or other proof, of the date on which a child of the class member will become 21 years old.

Where I-140 Beneficiary is Living Abroad:

Where the foreign national has already departed the United States and is living abroad because the INS incorrectly adjudicated the Form I-140 Immigrant Petition, the INS is required to re-adjudicate a maximum of 25 such I-140 Petitions on an expedited basis. The INS has agreed to re-adjudicate all such I-140 Petitions in accordance with the March 20, 2000 Memorandum issued by the INS with regard to EB-2 classification.

For those cases that are identified to the INS on or before May 8, 2000, the INS will re-adjudicate those cases, or request additional information, no later than June 8, 2000. If names of such class members who are living abroad are furnished to the INS on or before August 8, 2000, the INS will re-adjudicate those I-140 Petitions, or request additional information, within 30 days of identification to the INS. In either case the INS will have to make a decision within 30 days of the receipt of any additional information.

This class action lawsuit is another victory for the rights of intending immigrants, who have been adversely affected by the incorrect denial by the INS, of several hundreds, if not thousands, of cases which should have been accorded EB-2 under the INS' own regulations. If you do not have an attorney and wish to contact the Law Office of Sheela Murthy to review your case, please send us an Email to: <law@murthy.com> and mention in the subject line: Motion to Reconsider Under EB-2 Class Action Lawsuit." Ultimately, we all need to appreciate and be grateful for the work and tireless efforts of some AILA attorneys who have expended their time, effort, funds and energy to protect the rights of immigrants.

The Law Office of Sheela Murthy, P.C.