USCIS will accept previous editions of the Form I-129, Petition for a Nonimmigrant Worker, postmarked on or before Dec. 22, 2010. Petitions postmarked on or after Dec. 23, 2010, must include the Form I-129 with a Nov. 23, 2010 revision date or they will be rejected.
USCIS has received several inquiries regarding Part 6 of the Form I-129, "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States." Please be advised that petitioners will not be required to complete Part 6 of Form I-129 until Feb. 20, 2011.
Immigration Attorney
Friday, December 31, 2010
Sunday, December 26, 2010
Writ of Mandamus
By Kent B. Gravelle, Esq.
According to Black's Law Dictionary (8th Ed. 2004), a writ of mandamus is a "writ issued by a superior court to compel a lower court or a government officer to perform a mandatory or purely ministerial duties correctly." In immigration law, writs of mandamus are most often utilized when U.S. Citizenship and Immigration Services (USCIS) allows an I-485 (Application to Register Permanent Residence or Adjust Status), N-400 (Naturalization Application), or I-589 (Application for Asylum and Withholding of Removal) to languish for years while a criminal and national security background check is conducted.
The immigration bar in Minnesota has been quite active (and successful) in writ of mandamus litigation against the federal government. Most recently, a published opinion was released in Burni v. Frazier, 545 F.Supp.2d 894, 897 (D.Minn.2008) in which the spouse of a U.S. citizen "...filed an I-485 application for adjustment of status to lawful permanent residency on or about December 10, 2004." The applicant's security checks were not completed, thus placing his final approval in limbo. Id. The applicant exhausted his administrative remedies by "...making written inquiries to the Department of Homeland Security, making Infopass appointments at the local district office to inquire about the status of his case, and writing to various government officials." Id.
Finally, after more than three years of delay, the applicant brought a suit requesting the issuance of a writ of mandamus which the government attempted to dismiss due to lack of subject matter jurisdiction. Id. The United States District Court for the District of Minnesota denied the government's motion to dismiss, holding that it had jurisdiction because the failure to make a decision on the I-485 application was not a discretionary action within the meaning of 8 U.S.C. §1252(b)(2)(B)(ii) and that 28 U.S.C. §1361 (the Mandamus Act) and 5 U.S.C. §§551 et seq. (Administrative Procedures Act or APA) afforded the applicant relief. Id. at 902, 903. The Court explained that 8 C.F.R. §245 requires that an I-485 applicant "shall be notified of the decision" regarding the application and thus "USCIS has a non-discretionary duty to adjudicate an application...and that the APA requires the applications to be adjudicated in a reasonable time." Id. at 904.
A year earlier, the Court issued three decisions in three separate mandamus cases in October of 2007: Sun v. Chertoff, 2007 WL 2907993 (D.Minn.); Sawad v. Frazier, 2007 WL 2973833 (D.Minn.); and Asrani v. Chertoff, 2007 WL 3521366 (D.Minn.). All three were favorable to the immigrant-plaintiff.
In Sun, a Chinese immigrant filed an I-485 with the Nebraska Service Center of the U.S. Citizenship and Immigration Service (USCIS) on August 19, 2004. Id. at *2. On September 2, 2004, the FBI received Sun's name from USCIS for a name check. Id. In 2006, Sun sought the help of her congressman and senator to no avail and Sun received information pursuant to a Freedom of Information Act (FOIA) request which showed that the FBI had no records pertaining to her. Id.
Sun filed her suit for a writ of mandamus against various DHS, USCIS, and FBI officials on March 13, 2007, about two and one-half years after her submission of the I-485. Id. The government brought a motion to dismiss which the Court denied, holding that "...the APA requires that the applications be processed in a reasonable time." Id. at *8, citing 5 U.S.C. §555(b). The Court also ordered that the government "provide to the court and plaintiff within 60 days evidence specific to plaintiff's application showing that the delay in processing her name check and adjudicating her application is reasonable." Id. at *12.
In Sawad v. Frazier, 2007 WL 2973833 (D.Minn.), a husband and wife filed their I-485 applications on March 1st and December 27th of 2004. Id. at *2. The FBI acknowledged receipt of USCIS's name check requests shortly after each I-485 was filed, but as of September 14, 2007, the date of the court hearing, plaintiffs' name checks had not been completed.
Click here to read Full Article..
According to Black's Law Dictionary (8th Ed. 2004), a writ of mandamus is a "writ issued by a superior court to compel a lower court or a government officer to perform a mandatory or purely ministerial duties correctly." In immigration law, writs of mandamus are most often utilized when U.S. Citizenship and Immigration Services (USCIS) allows an I-485 (Application to Register Permanent Residence or Adjust Status), N-400 (Naturalization Application), or I-589 (Application for Asylum and Withholding of Removal) to languish for years while a criminal and national security background check is conducted.
The immigration bar in Minnesota has been quite active (and successful) in writ of mandamus litigation against the federal government. Most recently, a published opinion was released in Burni v. Frazier, 545 F.Supp.2d 894, 897 (D.Minn.2008) in which the spouse of a U.S. citizen "...filed an I-485 application for adjustment of status to lawful permanent residency on or about December 10, 2004." The applicant's security checks were not completed, thus placing his final approval in limbo. Id. The applicant exhausted his administrative remedies by "...making written inquiries to the Department of Homeland Security, making Infopass appointments at the local district office to inquire about the status of his case, and writing to various government officials." Id.
Finally, after more than three years of delay, the applicant brought a suit requesting the issuance of a writ of mandamus which the government attempted to dismiss due to lack of subject matter jurisdiction. Id. The United States District Court for the District of Minnesota denied the government's motion to dismiss, holding that it had jurisdiction because the failure to make a decision on the I-485 application was not a discretionary action within the meaning of 8 U.S.C. §1252(b)(2)(B)(ii) and that 28 U.S.C. §1361 (the Mandamus Act) and 5 U.S.C. §§551 et seq. (Administrative Procedures Act or APA) afforded the applicant relief. Id. at 902, 903. The Court explained that 8 C.F.R. §245 requires that an I-485 applicant "shall be notified of the decision" regarding the application and thus "USCIS has a non-discretionary duty to adjudicate an application...and that the APA requires the applications to be adjudicated in a reasonable time." Id. at 904.
A year earlier, the Court issued three decisions in three separate mandamus cases in October of 2007: Sun v. Chertoff, 2007 WL 2907993 (D.Minn.); Sawad v. Frazier, 2007 WL 2973833 (D.Minn.); and Asrani v. Chertoff, 2007 WL 3521366 (D.Minn.). All three were favorable to the immigrant-plaintiff.
In Sun, a Chinese immigrant filed an I-485 with the Nebraska Service Center of the U.S. Citizenship and Immigration Service (USCIS) on August 19, 2004. Id. at *2. On September 2, 2004, the FBI received Sun's name from USCIS for a name check. Id. In 2006, Sun sought the help of her congressman and senator to no avail and Sun received information pursuant to a Freedom of Information Act (FOIA) request which showed that the FBI had no records pertaining to her. Id.
Sun filed her suit for a writ of mandamus against various DHS, USCIS, and FBI officials on March 13, 2007, about two and one-half years after her submission of the I-485. Id. The government brought a motion to dismiss which the Court denied, holding that "...the APA requires that the applications be processed in a reasonable time." Id. at *8, citing 5 U.S.C. §555(b). The Court also ordered that the government "provide to the court and plaintiff within 60 days evidence specific to plaintiff's application showing that the delay in processing her name check and adjudicating her application is reasonable." Id. at *12.
In Sawad v. Frazier, 2007 WL 2973833 (D.Minn.), a husband and wife filed their I-485 applications on March 1st and December 27th of 2004. Id. at *2. The FBI acknowledged receipt of USCIS's name check requests shortly after each I-485 was filed, but as of September 14, 2007, the date of the court hearing, plaintiffs' name checks had not been completed.
Click here to read Full Article..
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