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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Class Action Lawsuit Filed Against The USCIS Challenging Delays Contrary To Congressional Mandate

by Rajiv S. Khanna

On December 22, 2003, ImmigrationPortal.Com, an online community and others have filed a lawsuit against United States Immigration and Citizenship Services (earlier known as INS) challenging the delays in processing of some applications for employment based immigrants.

This Complaint stemmed from the extraordinary delays in completing green card processing leading to much distress and harm in the community. The overall process can take 6 years or more. The Complaint notes:

  • The process of obtaining employment based US Lawful Permanent Residence (“green card”), especially for Labor Certification based cases has become egregiously dilatory over the past few years. The delays in the process have now come to the point where in States like New York and California it can take six years or more to obtain a green card. In the interim, an employee is left with continuous dread and insecurity. Loss or diminishment of employment almost invariably means abrupt uprooting of years of life and career built in this country. In most cases, USCIS practice permits not even one day of grace period to arrange for passage out of USA - a state of affairs long way from the constitutional ideal of “…pursuit of happiness.”
  • Additionally, for labor certification based cases, which form a large majority of employment-based applications, any substantial career advancement is unwise. A promotion leads to nullification of the entire green card process, thereby necessitating starting the process all over again - resetting the six-year countdown back to zero. Thus, an employee is required to continue at the same job level year after year.
  • The Defendants have administered immigration laws by ad-hoc memoranda and unwritten policy rather than by regulation. Several laws remain inexactly implemented without regulations by the agencies for years. The will of Congress, articulated in various ameliorative statutes, has been thwarted by the lack of regulations and the atmosphere of uncertainty for employees.”
  • Employment-Based Categories
    Under INA, the employment-based category is divided into five preferences or groupings. 8 U.S.C. § 1153(b).
    • The highest priority goes to first employment-based “priority workers” who consist of:
      • Aliens with extraordinary ability;
      • Outstanding professors and researchers; and
      • Certain multinational executives and managers subject to international transfer to the United States.
    • The second employment-based preferences include professionals holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit the national economy, cultural or educational interests, or welfare of the United States.
    • The third employment-based preference include certain professional, skilled and unskilled workers, where qualified workers are not available in the United States.
    • The fourth employment-based preference includes certain special immigrants, including ministers of religion.
    • The fifth employment-based category includes alien investors who create or maintain at least ten jobs in USA, none of which can be for their own family members.

    All of the above categories of workers are severely affected by the inordinate delays in processing and have accordingly filed the instant lawsuit.
For the complaint, see here.

The community had made several concerted efforts to redress this problem through the government and the legislature. Thousands of people signed and submitted several petitions, but no action was taken by the government. For a copy of one of these petitions, see here. For related community discussions, see here.

Having failed in their efforts, filing a lawsuit was the only option left to the community.


About The Author

Rajiv S. Khanna is an immigration attorney, the founder of Immigration.com, and counsel for the plaintiffs for this lawsuit. For further information on this lawsuit, please contact Rajiv S. Khanna at rskhanna@immigration.com or by (PH) 703-908-4800. To join online discussions on the lawsuit, see here.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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