pappu
09-09 12:10 PM
Please post on other sites and your blogs so that we have more participation
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raama123
09-25 09:21 PM
Can we apply two labors with different companies for single person in PERM ?
my labor is approved with B company in Aug2010.
my employer (company A - holding my h1) also applied labor in July2010.
they are called employer and want to visit company and consultant work place
USCIS visited wrong address and they mailed to my employer like below
1) If MR. is employed by your organization;
2) The start date of MR. employment with your organization;
3) The specific geographic location and physical address MRs working at;
4) The current client that MR is assigned to. Please also provide contact information for a representative of that end client and a copy of the contract. You also indicated that you have filed a new LCA with the Department of Labor � please provide a copy of that LCA.
5) The specific job duties that MR is performing;
6) And the current annual compensation of MR.. Please provide a copy of the IRS Form W-2 issued to MR for 2009 as well as recent payroll documentation for July 2010 to present.
I am working in Govt client,I can provide above all the documents except may not provide representative name and number.
how can i manage this situation,please give me suggestion and share your experiences.
--Rama
my labor is approved with B company in Aug2010.
my employer (company A - holding my h1) also applied labor in July2010.
they are called employer and want to visit company and consultant work place
USCIS visited wrong address and they mailed to my employer like below
1) If MR. is employed by your organization;
2) The start date of MR. employment with your organization;
3) The specific geographic location and physical address MRs working at;
4) The current client that MR is assigned to. Please also provide contact information for a representative of that end client and a copy of the contract. You also indicated that you have filed a new LCA with the Department of Labor � please provide a copy of that LCA.
5) The specific job duties that MR is performing;
6) And the current annual compensation of MR.. Please provide a copy of the IRS Form W-2 issued to MR for 2009 as well as recent payroll documentation for July 2010 to present.
I am working in Govt client,I can provide above all the documents except may not provide representative name and number.
how can i manage this situation,please give me suggestion and share your experiences.
--Rama
l1fraud
06-15 09:02 AM
Get over with it bunch of whiny losers. Someone can can and is willing to do the job cheaper than you.
Think from your client's perspective:
1. Why should he pay you more if he can get someone for cheaper price?
2. Are you willing to do the same job for the salary that is offered by TCS, WIPRO?
3. If you screw up , who is responsible? What can you do to mitigate damage? TCS/WIPRO can replace the whole team at free of cost to make project successful.
4. YOU guys want to leave companies at will but the companies should not replace you at will?
If you were bringing in value to the client that they cant get from TCS/WIPRO then you will have the job. Get some more skills, be best in the business and be smart. Know what it takes for long term success. You have to be on your toes all the time.
STOP whining, you are just wasting time. All the best!
1. Why should he pay you more if he can get someone for cheaper price? - No Issues as long as its by following all the rules and regulations set by the authorities.
2. Are you willing to do the same job for the salary that is offered by TCS, WIPRO? - Nope, my salary is my personal choice. Tomorrow these companies may bring resources Illegally across border and offer 5$ per hour, would you accept that salary???
3. If you screw up , who is responsible? What can you do to mitigate damage? TCS/WIPRO can replace the whole team at free of cost to make project successful. - BS
4. YOU guys want to leave companies at will but the companies should not replace you at will? - Not at all, they can replace us anytime they want.. I don't know why this point ???
Here we are discussing about a violation by companies using L-1B visa resources and we think reporting this to the agencies (ICE/USCIS) and making awareness amoung clients doesn't harm anyone who does their business within the legal frame work.
Think from your client's perspective:
1. Why should he pay you more if he can get someone for cheaper price?
2. Are you willing to do the same job for the salary that is offered by TCS, WIPRO?
3. If you screw up , who is responsible? What can you do to mitigate damage? TCS/WIPRO can replace the whole team at free of cost to make project successful.
4. YOU guys want to leave companies at will but the companies should not replace you at will?
If you were bringing in value to the client that they cant get from TCS/WIPRO then you will have the job. Get some more skills, be best in the business and be smart. Know what it takes for long term success. You have to be on your toes all the time.
STOP whining, you are just wasting time. All the best!
1. Why should he pay you more if he can get someone for cheaper price? - No Issues as long as its by following all the rules and regulations set by the authorities.
2. Are you willing to do the same job for the salary that is offered by TCS, WIPRO? - Nope, my salary is my personal choice. Tomorrow these companies may bring resources Illegally across border and offer 5$ per hour, would you accept that salary???
3. If you screw up , who is responsible? What can you do to mitigate damage? TCS/WIPRO can replace the whole team at free of cost to make project successful. - BS
4. YOU guys want to leave companies at will but the companies should not replace you at will? - Not at all, they can replace us anytime they want.. I don't know why this point ???
Here we are discussing about a violation by companies using L-1B visa resources and we think reporting this to the agencies (ICE/USCIS) and making awareness amoung clients doesn't harm anyone who does their business within the legal frame work.
2011 #39;Weeds#39; Season 6 Finale:
unseenguy
06-15 07:01 PM
Thanks guys.. there may be a good news to share.. not from authorities BUT from our client side.. will confirm the same before announcing it here.. also awareness and education works at times... please keep your client management informed about this laws and regulations.
Good for you! All the best!
Good for you! All the best!
more...
jonty_11
08-09 01:58 PM
This is my view about how USCIS has messed up in name check delays.
Name check PROGRAM that they might be using takes into account phoenetic spelling of FIRST and LAST NAME. Now just imagine, if your name is broken into 100 different spelling combinations and when your entire BIRTH YEAR IS checked against the databse--it will be surprising if there are no HITS. And to resolve those hits, pre-1995 records needs to be serached manually. There is no responsibility or time commitment by FBI or USCIS for the delay.
This might be true for Asian names. The argument is-- the names in the databse are translations and therefore, they need to check accordingly.
I BET they are not doing this for AMERICAN names, I mean for passport approval, they do not apply phoenetic program. I remember that FBI testimony included the discussion that they have set up appropriate filters for passport applicants (american citizens) so that unnecessary hits are avoided. Now this is my view and a discussion point. I may be wrong too.
In effect, Indian and Chinese professionals are deprived of immigration benefits.
Equally controversial is per country limitations in EB categories. If you do not select based on country of origin, you should not be subjected to per country limits because you are working for an american company and you are going to be american. Any demographic adjustment need to be made in diversity visa lottery.
This retrogression in effect deprives Indian and Chinese professionals of their benefits.
Justice and fairness has it that these problems need to be addressed. Abundant common sense and deeply practical approach that USA has, I am sure above problems will find attention. This great nation has always supported JUST and FAIR rules.
I think Indians have outnumbered chinese over the last 2-3 years...
Come October, the VB will be worse for India and Much better for China.
Name check PROGRAM that they might be using takes into account phoenetic spelling of FIRST and LAST NAME. Now just imagine, if your name is broken into 100 different spelling combinations and when your entire BIRTH YEAR IS checked against the databse--it will be surprising if there are no HITS. And to resolve those hits, pre-1995 records needs to be serached manually. There is no responsibility or time commitment by FBI or USCIS for the delay.
This might be true for Asian names. The argument is-- the names in the databse are translations and therefore, they need to check accordingly.
I BET they are not doing this for AMERICAN names, I mean for passport approval, they do not apply phoenetic program. I remember that FBI testimony included the discussion that they have set up appropriate filters for passport applicants (american citizens) so that unnecessary hits are avoided. Now this is my view and a discussion point. I may be wrong too.
In effect, Indian and Chinese professionals are deprived of immigration benefits.
Equally controversial is per country limitations in EB categories. If you do not select based on country of origin, you should not be subjected to per country limits because you are working for an american company and you are going to be american. Any demographic adjustment need to be made in diversity visa lottery.
This retrogression in effect deprives Indian and Chinese professionals of their benefits.
Justice and fairness has it that these problems need to be addressed. Abundant common sense and deeply practical approach that USA has, I am sure above problems will find attention. This great nation has always supported JUST and FAIR rules.
I think Indians have outnumbered chinese over the last 2-3 years...
Come October, the VB will be worse for India and Much better for China.
gc_check
04-01 07:40 AM
Guys,
Not sure whether below information is any helpful.
My Priority date is : July 2007
I-140 approval date : March 2009
Processing : Consular
Today i received a mail from NVC to pay immigration processing fee of $794.
Does any ones what is this for ? does it help to know the demand ?
Regards
Though you are processing through consular processing, can you please verify if you have any reasons ( Birth country, spouse birth country) etc.. to get charged against a category that is current now. If so, it is business as usual, else not sure.. you just got lucky your case is approved, but again .. with pre-adjudication, etc.. we never know.. Anything requested from USCIS, do respond in time.... On the other hand makes me wonder, if the EB2 dates can really advance that much ???? Significant forward movement based on other thread... Anyway good luck.
Not sure whether below information is any helpful.
My Priority date is : July 2007
I-140 approval date : March 2009
Processing : Consular
Today i received a mail from NVC to pay immigration processing fee of $794.
Does any ones what is this for ? does it help to know the demand ?
Regards
Though you are processing through consular processing, can you please verify if you have any reasons ( Birth country, spouse birth country) etc.. to get charged against a category that is current now. If so, it is business as usual, else not sure.. you just got lucky your case is approved, but again .. with pre-adjudication, etc.. we never know.. Anything requested from USCIS, do respond in time.... On the other hand makes me wonder, if the EB2 dates can really advance that much ???? Significant forward movement based on other thread... Anyway good luck.
more...
mallu
09-11 05:56 PM
CIS Ombudsman's annual report.
The information might have been posted earlier...
http://www.dhs.gov/xlibrary/assets/CISOMB_Annual_Report_2007.pdf
page 37 - 44 - detail the problem and proposed solution
the flow chart on page is 42 gives a good description
So , the USCIS says they get 39% positive response from FBI namecheck. Does that mean
for those 39% the GC/Citizenship is denied? I haven't heard much about folks getting GC denied because of critical FBI report. The Ombuds is unable to determine how much of the 39% positive response cases were already covered by other means of check. .
I think their reasoning could be like this "Even if 1 million good guys are put to difficulty because of the false hits, if they can catch 1 bad guy with the process, they will continue to do so". The only solution appears to increase the resources/money.
The information might have been posted earlier...
http://www.dhs.gov/xlibrary/assets/CISOMB_Annual_Report_2007.pdf
page 37 - 44 - detail the problem and proposed solution
the flow chart on page is 42 gives a good description
So , the USCIS says they get 39% positive response from FBI namecheck. Does that mean
for those 39% the GC/Citizenship is denied? I haven't heard much about folks getting GC denied because of critical FBI report. The Ombuds is unable to determine how much of the 39% positive response cases were already covered by other means of check. .
I think their reasoning could be like this "Even if 1 million good guys are put to difficulty because of the false hits, if they can catch 1 bad guy with the process, they will continue to do so". The only solution appears to increase the resources/money.
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letstalklc
10-01 12:31 PM
ALLVOI has plans for $14.99/750 mins and $ 19.99/1300 mins to India. I think thats more than enough for normal household's use :)
And ALLVOI works with cellphone too.
If you want only India calling, there are lot of good calling card companies, that they are offering better price than the above mentioned.
Airtel call home - 9.99 + tax = you will get 600 mts - 45 days validity period
relaible calling - 9.99 +tax = you will get 600 mts - 30 days validity period
And ALLVOI works with cellphone too.
If you want only India calling, there are lot of good calling card companies, that they are offering better price than the above mentioned.
Airtel call home - 9.99 + tax = you will get 600 mts - 45 days validity period
relaible calling - 9.99 +tax = you will get 600 mts - 30 days validity period
more...
rodnyb
04-01 10:31 PM
If in Vegas, I will bet this total usage for EB2 I/C this year
EB1 20K (50% reduction from 40K)
EB2 ROW 10K (last year 9K, this year, some reduction)
EB5 8K (same as last year)
EB2 I/C 6K (5800 exact, regular supply)
Total 44K
Eb3 Porting 6K
New filing 2K (ppl who missed 07/2007 w/ PD before 07/2007, dependent)
Total usage 8K
EB2I/C demand before 07/31/2007
DOS, for having some buffer to counter (denial, RFEs, assuming little as most pre-adjudicated) will move PD for EB2/I
May 2011 12/2006
June 2011 2/2007
July 2011 6/2007
August 2011 8/2007
Remember, CIS can take in new applicants in August 2011 but don't have to approve it.
It will end between 06/2007 to 09/2007 almost 100%
Can we try and consolidate the predictions by Teddy, Rodnyb, GCwait2007 and others who did some major number crunching (not armchair predictors like me).
Teddy, based on what we know now especially the past few days, can you give your average, best, and worst case estimate for September 2011. Same for rodnyb and GCwait2007. Thanks!
Also importantly, if you could comment on the PD for EB3-I/C and EB-2 I/C in October 2011 once this year is over. Will we see it retrogress or current and what's your average case for the dates then.
EB1 20K (50% reduction from 40K)
EB2 ROW 10K (last year 9K, this year, some reduction)
EB5 8K (same as last year)
EB2 I/C 6K (5800 exact, regular supply)
Total 44K
Eb3 Porting 6K
New filing 2K (ppl who missed 07/2007 w/ PD before 07/2007, dependent)
Total usage 8K
EB2I/C demand before 07/31/2007
DOS, for having some buffer to counter (denial, RFEs, assuming little as most pre-adjudicated) will move PD for EB2/I
May 2011 12/2006
June 2011 2/2007
July 2011 6/2007
August 2011 8/2007
Remember, CIS can take in new applicants in August 2011 but don't have to approve it.
It will end between 06/2007 to 09/2007 almost 100%
Can we try and consolidate the predictions by Teddy, Rodnyb, GCwait2007 and others who did some major number crunching (not armchair predictors like me).
Teddy, based on what we know now especially the past few days, can you give your average, best, and worst case estimate for September 2011. Same for rodnyb and GCwait2007. Thanks!
Also importantly, if you could comment on the PD for EB3-I/C and EB-2 I/C in October 2011 once this year is over. Will we see it retrogress or current and what's your average case for the dates then.
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ashokK
09-20 10:49 AM
I am in also facing the same situation...My employer says, the attorney clubbed some applications into one box and sent it, and donot know which box my application is, hence no fed ex number. Hopefully it should he been reached by july 2nd...No Receipts No Checks cleared...waiting for Sept 30 to call USCIS (after 90 days of filing)...most probably my application would have received by R.MICKELS, Delivery date: Jul 2, 2007 9:01 AM. I have got a list of tracking numbers from the attorney, only this tracking number details shows 4 lbs...hence thinking that my application is clubbed in this one. This was sent to Nebraska service center, My I-140 approved from Texas on June 25th. CAdude, Can you add my details onto the list. The compiled list show the time stamps are very close....
more...
bkn96
01-06 09:50 PM
My MTR is still pending with USCIS since 6 weeks. I sent form 7001 to Ombudsman office and got a one line reply that 'your case problem request is currently being processed'
Sent letters and supporting documents to 2 US senators, but i got standard reply from them saying they need 30days to find the status. Office of one senator (NJ) was very helpful but not sure how this helps in resolving my case..
Sent letters and supporting documents to 2 US senators, but i got standard reply from them saying they need 30days to find the status. Office of one senator (NJ) was very helpful but not sure how this helps in resolving my case..
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maddila
09-10 07:53 AM
Finally after 10 yrs and two labor and lots of H1 drama got greened last night.
PD: March 16th.
Openend a SR , sent a letter to Senator dunno which one worked. But glad it did.
PD: March 16th.
Openend a SR , sent a letter to Senator dunno which one worked. But glad it did.
more...
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ganguteli
06-09 11:51 PM
http://www.uscis.gov/files/pressrelease/LVisa_12_9_2004.pdf
Please refer this document and it will answer your doubt. To be specific L1B resources cannot be deployed in client premises on projects managed and controlled by client (known consulting assignments in technology world). This is just part of the violation. Second... L1B resources cannot be used for general technical skills (java/.net/oracle/production support etc) BUT can only be used for their speciality skills (while processing the L1 visa outsourcing companies shows some internal tools to prove this point). Hope this cleared your doubt, I am pretty sure that now you will be able to find a lot of violations in using L1B resources. L1B resource usage is so common that most of us who are aware of immigrations statuses even doesnt know about this .. forget others including our clients and their managers.
Thank you losers guild member.
Please refer this document and it will answer your doubt. To be specific L1B resources cannot be deployed in client premises on projects managed and controlled by client (known consulting assignments in technology world). This is just part of the violation. Second... L1B resources cannot be used for general technical skills (java/.net/oracle/production support etc) BUT can only be used for their speciality skills (while processing the L1 visa outsourcing companies shows some internal tools to prove this point). Hope this cleared your doubt, I am pretty sure that now you will be able to find a lot of violations in using L1B resources. L1B resource usage is so common that most of us who are aware of immigrations statuses even doesnt know about this .. forget others including our clients and their managers.
Thank you losers guild member.
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man-woman-and-gc
01-14 05:24 PM
I am really surprised by the meek response...what is wrong with everyone?? We have just abt 54 letters so far and almost 200 members online right now !!!
If you are reading this but have not written a letter yet, please answer one question for me:
What is the least effort that you can put towards your immigration?
If you cannot write or type a letter, i'm afraid you don't belong to the "Hard working, highly skilled" immigrants that is being referred to in the letter.
Please send me a Private message with your name and deatils and I can write up and post a letter for you....its is actually going to be for me as I am benefitting from this campaign...i don't mind if you get the benefits in the process.
I have the capacity for 3 hand written letters per day...and I am dead serious. We need numbers and a meagre 100 letters are going to get lost amongst thousands of letters that are received at Whitehouse everyday.
If you are reading this but have not written a letter yet, please answer one question for me:
What is the least effort that you can put towards your immigration?
If you cannot write or type a letter, i'm afraid you don't belong to the "Hard working, highly skilled" immigrants that is being referred to in the letter.
Please send me a Private message with your name and deatils and I can write up and post a letter for you....its is actually going to be for me as I am benefitting from this campaign...i don't mind if you get the benefits in the process.
I have the capacity for 3 hand written letters per day...and I am dead serious. We need numbers and a meagre 100 letters are going to get lost amongst thousands of letters that are received at Whitehouse everyday.
more...
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Hunter
05-09 05:35 AM
This guy doesn't have a clue. He is deviating so much from the core US policy, I don't know where it might end. I wonder whether we are better off with the last one????
Then why do you bother to desparately stay in US? Vote with your feet.
Then why do you bother to desparately stay in US? Vote with your feet.
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Nil
03-10 10:33 AM
Guys,
Conflicting opinions are welcome and necessary. However, pls let us eliminate the mudslinging that gets personal so quickly, just because we disagree.
From a practical point of view, given the situation today, getting doors open for citizenship looks remote: True.
However, in a land of immigrants, We The Legal, can stress a case for fairness. Just because we were born in a certain country and were classified by the law, the lawyer and the employer, sometimes unfairly, to be in a certain category, does not mean that we'll get into mainstream 15 years after others.
This is why we are a part of IV. There have been past successes with IV.
Pls let us TRY.
Conflicting opinions are welcome and necessary. However, pls let us eliminate the mudslinging that gets personal so quickly, just because we disagree.
From a practical point of view, given the situation today, getting doors open for citizenship looks remote: True.
However, in a land of immigrants, We The Legal, can stress a case for fairness. Just because we were born in a certain country and were classified by the law, the lawyer and the employer, sometimes unfairly, to be in a certain category, does not mean that we'll get into mainstream 15 years after others.
This is why we are a part of IV. There have been past successes with IV.
Pls let us TRY.
more...
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english_august
07-11 12:20 AM
I hate to be nitpicking but
The irony is, in this whole migration debate, our issues are probably easiest to solve," said Bajaj.
Bajaj its not migrationits immigration. bird migrate people immigrate
Phew! Even I hate for you to be nitpicking :eek:
The irony is, in this whole migration debate, our issues are probably easiest to solve," said Bajaj.
Bajaj its not migrationits immigration. bird migrate people immigrate
Phew! Even I hate for you to be nitpicking :eek:
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Kushal
11-24 07:23 PM
I am sure you must have thought a lot before the 'foreclosure' came into your mind. Here is an advice. If there is not too much that you will have to put out from your own pocket, then it is better to take the hit and move on.
If you do foreclose, it might not be the best for credit history as well as in some random cases, job search. Jobs usually do a background check and that includes credit check in some cases as well. I hope it has no bearing but in some cases can. I don't think it will have any impact on your GC. Even if you don't have plans to buy a house, there are far more things that can impact. None of us want to live on credit but in US it is almost a necessary evil. Car, credit cards and the other nine yards that come with it also become scarce for the next few years. So, tread carefully.
Have you discussed with your bank? Foreclosure is a huge hit for the bank and they may be able to work with you on what you owe.
All the best.
Why do you have to live on credit?....you can go cash rich!!
If you do foreclose, it might not be the best for credit history as well as in some random cases, job search. Jobs usually do a background check and that includes credit check in some cases as well. I hope it has no bearing but in some cases can. I don't think it will have any impact on your GC. Even if you don't have plans to buy a house, there are far more things that can impact. None of us want to live on credit but in US it is almost a necessary evil. Car, credit cards and the other nine yards that come with it also become scarce for the next few years. So, tread carefully.
Have you discussed with your bank? Foreclosure is a huge hit for the bank and they may be able to work with you on what you owe.
All the best.
Why do you have to live on credit?....you can go cash rich!!
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DallasBlue
09-27 02:18 PM
http://www.ailf.org/lac/lac_pa_chrono.shtml
http://www.ailf.org/lac/mandamus-jurisdiction9-24-07%20PA.pdf
1. What are the general arguments that the government makes to dismiss a mandamus/APA case for lack of jurisdiction?
The government�s motions to dismiss for lack of jurisdiction are filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (FRCP). The government generally makes some combination of the following four arguments, all of which center on alleged agency discretion with respect to adjudication of adjustment applications:
� That USCIS does not have a duty to adjudicate an adjustment application and therefore an essential element of the mandamus claim is missing;
� That the pace of adjudication of an adjustment application is discretionary and therefore not subject to mandamus relief;
� That adjudication of adjustment applications is committed to agency discretion by law and not subject to APA relief; and
� That 8 U.S.C. � 1252(a)(2)(B)(ii), which limits judicial review over certain discretionary issues in immigration cases, bars review of these mandamus and APA cases.
2. In responding to a motion to dismiss, can I argue that at least some of the issues raised by the government are not jurisdictional?
Yes. An initial response to a government motion to dismiss for lack of jurisdiction is to question whether, in fact, the government has raised a jurisdictional challenge. The Supreme Court has distinguished between jurisdiction � which is the court�s power to hear the case � and the sufficiency of a valid cause of action. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1988); see also Ahmed v. DHS, 328 F.3d 383, 386-87 (7th Cir. 2003) (distinguishing between the court�s power to adjudicate the case, which is jurisdictional, and the court�s power to grant relief, which is not jurisdictional).
The failure to state a valid cause of action calls for a judgment on the merits and not for dismissal for want of jurisdiction. Bell v. Hood, 327 U.S. 678, 682 (1946). The Supreme Court has made clear that:
�jurisdiction � is not defeated � by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.� Rather, the district court has jurisdiction if �the right of the petitioners to recover under their complaint will be sustained if the [ ] laws of the United States are given one construction and will be defeated if they are given another ��
Steel Co. v. Citizens for a Better Environment, 523 U.S. at 89 (quoting Bell, 327 U.S. at 682, 685). Thus, one court has held that in resolving whether mandamus jurisdiction is present in an immigration case, the allegations of the complaint are taken as true (unless patently frivolous) to avoid �tackling the merits under the ruse of assessing jurisdiction.� Ahmed, 328 F.3d at 386-387.
Applying these principles, the Seventh Circuit held in Ahmed that the question of whether a statute imposed a �duty� on the government for purposes of mandamus relief was not a jurisdictional question. As the court explained:
[T]he district court has jurisdiction under � 1361 [the mandamus statute] to determine whether the prerequisites for mandamus relief have been satisfied: does the plaintiff have a clear right to the relief sought; does the defendant have a duty to perform the act in question; and is there no other adequate remedy available. � A conclusion that any one of those prerequisites is missing should lead the district court to deny the petition, not [for lack of jurisdiction], but because the plaintiff has not demonstrated an entitlement to this form of extraordinary relief.
Ahmed, 328 F.3d at 386-87.
Thus, where the government claims that jurisdiction is lacking because a prerequisite to mandamus is missing, the plaintiff can respond by arguing that this is not a jurisdictional question and cannot lead to dismissal under Rule 12(b)(1). Most likely, you also will want to address the substance of the challenge, also, as an alternative way to dispute the government�s motion. See, e.g., � 3, below.
http://www.ailf.org/lac/mandamus-jurisdiction9-24-07%20PA.pdf
1. What are the general arguments that the government makes to dismiss a mandamus/APA case for lack of jurisdiction?
The government�s motions to dismiss for lack of jurisdiction are filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (FRCP). The government generally makes some combination of the following four arguments, all of which center on alleged agency discretion with respect to adjudication of adjustment applications:
� That USCIS does not have a duty to adjudicate an adjustment application and therefore an essential element of the mandamus claim is missing;
� That the pace of adjudication of an adjustment application is discretionary and therefore not subject to mandamus relief;
� That adjudication of adjustment applications is committed to agency discretion by law and not subject to APA relief; and
� That 8 U.S.C. � 1252(a)(2)(B)(ii), which limits judicial review over certain discretionary issues in immigration cases, bars review of these mandamus and APA cases.
2. In responding to a motion to dismiss, can I argue that at least some of the issues raised by the government are not jurisdictional?
Yes. An initial response to a government motion to dismiss for lack of jurisdiction is to question whether, in fact, the government has raised a jurisdictional challenge. The Supreme Court has distinguished between jurisdiction � which is the court�s power to hear the case � and the sufficiency of a valid cause of action. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1988); see also Ahmed v. DHS, 328 F.3d 383, 386-87 (7th Cir. 2003) (distinguishing between the court�s power to adjudicate the case, which is jurisdictional, and the court�s power to grant relief, which is not jurisdictional).
The failure to state a valid cause of action calls for a judgment on the merits and not for dismissal for want of jurisdiction. Bell v. Hood, 327 U.S. 678, 682 (1946). The Supreme Court has made clear that:
�jurisdiction � is not defeated � by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.� Rather, the district court has jurisdiction if �the right of the petitioners to recover under their complaint will be sustained if the [ ] laws of the United States are given one construction and will be defeated if they are given another ��
Steel Co. v. Citizens for a Better Environment, 523 U.S. at 89 (quoting Bell, 327 U.S. at 682, 685). Thus, one court has held that in resolving whether mandamus jurisdiction is present in an immigration case, the allegations of the complaint are taken as true (unless patently frivolous) to avoid �tackling the merits under the ruse of assessing jurisdiction.� Ahmed, 328 F.3d at 386-387.
Applying these principles, the Seventh Circuit held in Ahmed that the question of whether a statute imposed a �duty� on the government for purposes of mandamus relief was not a jurisdictional question. As the court explained:
[T]he district court has jurisdiction under � 1361 [the mandamus statute] to determine whether the prerequisites for mandamus relief have been satisfied: does the plaintiff have a clear right to the relief sought; does the defendant have a duty to perform the act in question; and is there no other adequate remedy available. � A conclusion that any one of those prerequisites is missing should lead the district court to deny the petition, not [for lack of jurisdiction], but because the plaintiff has not demonstrated an entitlement to this form of extraordinary relief.
Ahmed, 328 F.3d at 386-87.
Thus, where the government claims that jurisdiction is lacking because a prerequisite to mandamus is missing, the plaintiff can respond by arguing that this is not a jurisdictional question and cannot lead to dismissal under Rule 12(b)(1). Most likely, you also will want to address the substance of the challenge, also, as an alternative way to dispute the government�s motion. See, e.g., � 3, below.
dilber
09-09 05:15 PM
In the process of calling all of them. Gone through a few already. Come on people it is really easy and effective.
kaisersose
03-25 05:16 PM
About three years back I was in India working for a major US silicon company. They have a policy that an employee can seek other jobs inside the company after 18 months in the currrent position.
Per this policy some employees from the India division were filling in US positions through L visas which bothered some of the top guys who quickly clamped this down.
They said US positions cannot be filled by Chinese, Indians and Israelies as this would open a floodgate as every employee in these countries will queue up to relocate to the US. Other countries were fine. But the problem was such a restriction is against the standard US policy of "no discrimination b nationality....". So they solved the problem by not writing down this ban. It was orally communicated to hiring managers and when they saw resumes from India employees, they would just delete them.
So everyone knows about this ban, but it is not written down anywhere. On paper, the company continues to be open and does not discriminate hiring based on nationality.
Per this policy some employees from the India division were filling in US positions through L visas which bothered some of the top guys who quickly clamped this down.
They said US positions cannot be filled by Chinese, Indians and Israelies as this would open a floodgate as every employee in these countries will queue up to relocate to the US. Other countries were fine. But the problem was such a restriction is against the standard US policy of "no discrimination b nationality....". So they solved the problem by not writing down this ban. It was orally communicated to hiring managers and when they saw resumes from India employees, they would just delete them.
So everyone knows about this ban, but it is not written down anywhere. On paper, the company continues to be open and does not discriminate hiring based on nationality.
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