Here’s the case update I just posted on the Visagate Facebook page:

“Good evening everyone. As we mentioned last week, we had a deadline of today to file our amended complaint. That has now happened. The amended complaint can be found below.

There have been a number of important changes and expansions from the original complaint filed in September. The following summarizes them:

1. We have added and subtracted a named plaintiff. The additional plaintiff, Mr. N. Chitturi, has a child who is facing aging out if he cannot file his adjustment application soon.

2. We have a new line of argument relating to the statutory and regulatory requirement that DOS maintain a waiting list of green card applicants. USCIS and DOS are supposed to cooperate to maintain this list which is necessary to determine the order for taking adjustment applications. That list has never been properly maintained which means that DOS and USCIS have simply picked arbitrary filing dates for the revised bulletin and that if they had maintained a proper waiting list, they would not have needed to withdraw the initial Visa Bulletin. The statutory language establishes a liberty interest for the plaintiffs.

3. The revision also violates due process rights. While we’ve made due process arguments in the initial complaint, we’ve since learned that members of Congress applied undue pressure on USCIS and DOS to revise the Visa Bulletin. This led the agencies to change the Visa Bulletin post-issuance for the the first time in decades (aside from the 2007 revision which was subsequently reversed). As we note, “The Defendants have for years issued Visa Bulletins, expecting immigrants to rely on them and without revisions such as these . Additionally, they have used filing dates for years as well. These are de facto policies and the plaintiffs have a property interest in the benefits which were arbitrarily and capriciously denied to them.”

4. We explain to the judge the falsehood of the government’s contention in its response to our TRO motion that they made a mistake in calculating the dates in the original Visa Bulletin. USCIS has made various admissions in the months since which we point out. We also note other information we have to support our conclusion which is not public and which require us to have discovery to verify.

5. We counter the government’s contention that the Visa Bulletin’s issuance before the beginning of the month is a courtesy and argue that it is a binding policy statement.

6. We argue that if the government, in fact, made a mistake, that doesn’t relieve them of their obligations to the plaintiffs. USCIS must accept accountability for its mistakes.

7. We argue that the government’s interpretation of “immediately available” is arbitrary and capricious and the government has interpreted the term previously in a more liberal way on previous occasions.

8. We argue that USCIS was planning on pulling the Visa Bulletin for some time before it made its announcement, evidenced by its cancelling the stakeholder conference scheduled the week after the initial bulletin was released. The delay in making the announcement caused many millions of additional dollars to needlessly be spent.

9. We add the argument that violations of administrative regulations support civil liability in contract and tort. The reliance damage in this case arises in contract. Therefore, we are seeking both the restoration of the original bulletin’s filing dates AND financial compensation for the damages suffered.

I’ll have more to add regarding next steps soon and the various deadlines. But we think today’s filing helps our cause.”

And here’s the link to the amended complaint.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind
Share →

8 Responses to Amended Complaint Filed in Visagate Case

  1. Vishal says:

    Hi Greg,

    Now that the case is filed, I had a question about timing of the settlement.

    The final action dates for Eb2 India in the last few months have been moving quickly and in Feb 2016 visa bulletin, the date is Aug08. The dates are expected to advance by 4-6 months for a few months. The current filing date (which was retrogressed in October) is still July09. But if the final action dates advance at the current rate (as per some predictions based on DOS’s data: http://www.visajourney.com/timeline/visa-bulletin-predictions-work-sponsored.php) , it’s a high chance they will cross July09 in the next 2 months. Since the filing date cannot be behind final action date, they will advance too.

    I read somewhere that the originally published filing date of July11 for Eb2 in the Oct 2015 bulletin, which was later retrogressed was calculated based on the expected number of green cards in the entire year that USCIS expects to issue. Assuming that and looking at the final action date advancement, it is very likely that the filing as well as final action dates will cross July 2011 by Oct 2016.

    If the case takes longer than that to settle, the main benefit of reverting the filing date back to July11 would be lost as it would’ve already crossed it.

    So my question is in your experience, how much time should the settlement of this case take?

    Also, another question – is this class action and will benefit everyone affected or only the plaintiffs?

    Thanks for all the effort you’re putting into this.
    Vishal

    • In what world are you living? The dates wont cross 2009 Dec. They havn’t moved the dates in last 3-4 years and will remain in the same ballpark. I hope I am wrong but I dont see any progress.

  2. alpha0 says:

    Greg,

    We thank you and the team for all the hard work you are doing for this case. I recall that in one of FOIA requests, legal team asked for all communication between members of congress and USCIS/DOS/DHS. I thought response was due couple of months back. Did USCIS/DHS respond to those FOIA requests?

  3. Anonymous says:

    Thank you. Please do let us know if need to raise more money.

  4. vg909090 says:

    why uscis stopped filling date movement as per the Dos. When will it start again. Approx how long will this take to resolve the case. Beyond three months already.

  5. FA says:

    Hi Greg,
    CNN and leading TV channels are bringing DACA/DAPA – Texas vs Obama Admin case to media to
    help illegals fighting for illegal immigration rights. This will continue as a debate forum for primaries.

    How come legal immigrants affected by the visa gate are not getting their fair share of transparency?

  6. […] the logic of the government in not moving the filing dates correspondingly forward. Perhaps, the Mehta v. DOL lawsuit will force the government to provide some clarity, or the government will some day ealize […]

  7. Harry says:

    Honestly, I have lost hopes with the Govt & waiting for next govt so they can focus on legal immigrants and not to run & waste time on Illegal one.!! We need to stay separate as this will haunt us in future!! Whatever is illegal is illegal for legal residence, non citizen & Citizen. ( period)

    Giving amnesty & other forms relief will only motivate the culprit & not solve it.. America is not any more Wheat Bowl where every one can come & pick his share.. It is land of opportunity for those who have earned by studying higher education, being top of the line forgetting visas, finding client/projects & paying highest taxes ( considering non immigrants don’t get Social security, we are the highest tax payer in country for same income..)..

    We should not be mixed with those who have nothing to loose and can put there children & family at risk by placing them in borders.. if i was a non IT guy, i would never turn west & put my children in such a risk,no matter how much worth is it.. but these people are different.. By putting legal & illegal immigration in same bucket ( so called comprehensive immigration reforms), this govt has put us in trouble as we are being looked the same way.. This needs to be undone and fair & point based system should replace this broken process!! Let’s wait for sensible govt to take over!!

%d bloggers like this: