What our attorney told us

[rebeccajo 14]

Well, we had our phone consultation with an immigration attorney yesterday.

Sum total result of the conversation was that at this stage, Wes' file is unlikely to be resolved without a Writ of Mandamus filing. At least not in the foreseeable future.

I learned a couple of things.

Number 1 - It's not all that uncommon for local offices to give contact numbers or email addresses to petitioners so they can stay in touch with their AO. As far as I'm aware of though, I'm virtually the only VJ member who has ever been given contact information. Perhaps it should be advised on this website that should you find yourself in our condition at the interview, you insist upon being given a means to stay in touch with your office.

Number 2 - Filing a Writ of Mandamus won't adversely affect your case. DHS/FBI don't get 'mad' and decline the AOS simply because of the Writ. The Writ forces a decision. If the decision is adverse that just means you found out sooner rather than later.

Number 3 - Any 'immigration issues' are addressed at the consular level or at AOS interview. We have been concerned about Wes having held a prior J visa holding up the decision. We were advised that as Wes was never queried about that visa, then DHS has no issues with it. But FBI may be trying to connect the dots regarding the name and multiple visas. As such, there is no "problem" - ie the prior visa won't cause a denial - but it is causing FBI to sift through tons of old records. In other words it's a pain in the ### file on someones desk.

Number 4 - It's not necessary to wait two year to file a Writ. Especially with a case like ours wherein every step our Wes' immigration has been done legally and in a timely manner. We filed for a visa rather than a straight adjustment - we married within 90 days - we filed for AOS before the I94 expired - we filed for EAD and he has worked legally - we had no 'hitches' thus far such as delayed biometrics - and we were interviewed in a timely manner. We have followed up on our case with email and phonecalls and we have two letters from a Senator. We don't need to continue to stockpile evidence of having followed up on his immigration status. We have complied with the law enough at this stage to demand a decision.

Number 5 - You can ask for damages in your Writ, but they will not be granted unless you prevail. In other words if simply by filing the Writ and noticing the defendants through service of process, FBI magically coughs up the namecheck and DHS issues your greencard - then you cannot recover damages. And, anecdotally this is what usually happens. The Writ would have to ruled on by the judge for you to recover damages. And it's RARE to recover any damages beyond attorney fees and costs.

So now we must decide if we pursue a Writ in the near future or possibly wait until we have been married two years - thus putting the decision outside the timeframe for lifting of conditions and eliminating that step for us. However, as has been mentioned before, every day we are delayed stops Wes' citizenship clock.

[kim&james 0]

Thanks Rebecca, that sounds like great information to have.

Grab a coin and give it a toss....

Best of luck!

[Donna A 4]

im glad to hear u found an attorney who knows about these things. the attorney we used to file the aos (and i-129, 1-130) told us all we can do is wait and wait and wait. they never said anything about this writ u r talking about. in fact they kept saying its not unusaul to wait a long time for some people.

it seams since we are in the same situation as u r....got married...got k-3....filled aos within months of him coming here and no other complications we should be fine also. in fact we filled over 2 years ago for this and it took a year just to get a interview and here we are another year in limbo. theres already 2 years gone toward his citizenship. he has never had any other visa's. he couldnt even get a travel visa to come see me before.

i think ill have to contact my attorney and ask about this writ too.

[scroll 0]

Thanks for sharing the information. I have tucked it away in case I can use it in the future. Good luck with your decision.

[Nancy2015 2]

Best of luck to you. You have been waiting way too long, I wish you a successful outcome.

[imhrb 0]

Welcome to the club! I am kind of confused about whether or not to file the Writ...

[Girona40 0]

I think a lot of people hesitate to file a Writ of Mandamus - nobody likes having to take anyone to Court, if it can be avoided. But, as I have stated in the past it isn't necessary to wait any longer than what is considered a "reasonable" time and that is, in a case like this, 180 days.

Personally, I think I would go ahead and file if I were in your position - what have you got to lose? If this continues and, like us, Wes is required to apply for further EAD's, has to drive out to Pittsburgh etc. it may actually save you money in the long-term. What's the filing fee for a Mandamus writ.....around $200? As you say, it is unlikely to actually go to Court, but rather the USCIS will just issue what you are entitled to, avoiding the process.

We have been given several direct telephone line numbers for the original caseworker, the supervisor, adjudications officer and even the District Director at our local office, along with a direct fax line to the Officer and Supervisor at Vermont who dealt with his file at one time. We have been able to keep in touch to find out what is going on, but it didn't help much!!! Sorry, but your "claim to fame" cannot be as the only VJ'er to have a direct contact number with your AO!!! lol

[rebeccajo 14]

We have been given several direct telephone line numbers for the original caseworker, the supervisor, adjudications officer and even the District Director at our local office, along with a direct fax line to the Officer and Supervisor at Vermont who dealt with his file at one time. We have been able to keep in touch to find out what is going on, but it didn't help much!!! Sorry, but your "claim to fame" cannot be as the only VJ'er to have a direct contact number with your AO!!! lol

Not a claim to fame. Looks like an incorrect assumption.

I know you are stressed G, but I'm in your corner.

[knowledge 0]

Well, we had our phone consultation with an immigration attorney yesterday.

Sum total result of the conversation was that at this stage, Wes' file is unlikely to be resolved without a Writ of Mandamus filing. At least not in the foreseeable future.

I learned a couple of things.

Number 1 - It's not all that uncommon for local offices to give contact numbers or email addresses to petitioners so they can stay in touch with their AO. As far as I'm aware of though, I'm virtually the only VJ member who has ever been given contact information. Perhaps it should be advised on this website that should you find yourself in our condition at the interview, you insist upon being given a means to stay in touch with your office.

Number 2 - Filing a Writ of Mandamus won't adversely affect your case. DHS/FBI don't get 'mad' and decline the AOS simply because of the Writ. The Writ forces a decision. If the decision is adverse that just means you found out sooner rather than later.

Number 3 - Any 'immigration issues' are addressed at the consular level or at AOS interview. We have been concerned about Wes having held a prior J visa holding up the decision. We were advised that as Wes was never queried about that visa, then DHS has no issues with it. But FBI may be trying to connect the dots regarding the name and multiple visas. As such, there is no "problem" - ie the prior visa won't cause a denial - but it is causing FBI to sift through tons of old records. In other words it's a pain in the ### file on someones desk.

Number 4 - It's not necessary to wait two year to file a Writ. Especially with a case like ours wherein every step our Wes' immigration has been done legally and in a timely manner. We filed for a visa rather than a straight adjustment - we married within 90 days - we filed for AOS before the I94 expired - we filed for EAD and he has worked legally - we had no 'hitches' thus far such as delayed biometrics - and we were interviewed in a timely manner. We have followed up on our case with email and phonecalls and we have two letters from a Senator. We don't need to continue to stockpile evidence of having followed up on his immigration status. We have complied with the law enough at this stage to demand a decision.

Number 5 - You can ask for damages in your Writ, but they will not be granted unless you prevail. In other words if simply by filing the Writ and noticing the defendants through service of process, FBI magically coughs up the namecheck and DHS issues your greencard - then you cannot recover damages. And, anecdotally this is what usually happens. The Writ would have to ruled on by the judge for you to recover damages. And it's RARE to recover any damages beyond attorney fees and costs.

So now we must decide if we pursue a Writ in the near future or possibly wait until we have been married two years - thus putting the decision outside the timeframe for lifting of conditions and eliminating that step for us. However, as has been mentioned before, every day we are delayed stops Wes' citizenship clock.

Refined infos, thanks!!!...For no. 5, one idea: instead of filling the Writ, and, considering there has been a constant contact between you and them for communication, etc...why not use the same tool to tell them, prevent them that you think of suing...a simple question adressed to them!...and see what happens?...

[rebeccajo 14]

Refined infos, thanks!!!...For no. 5, one idea: instead of filling the Writ, and, considering there has been a constant contact between you and them for communication, etc...why not use the same tool to tell them, prevent them that you think of suing...a simple question adressed to them!...and see what happens?...

The 'veiled threat' tactic? LOL

Works in civil litigation sometimes. Must not for immigration or it would have been suggested to us.

[imhrb 0]

Actually this practice is recommended. I talked to two attorneys and they both said that you "could" possibly file the writ directly but it is "preferred" that you write to them and tell them to take action in x number of days (30 - 60 or so) and in many cases they do act. So you won't even need to file the writ. Of course they could play bluff on you! In that case, you would file it.

Refined infos, thanks!!!...For no. 5, one idea: instead of filling the Writ, and, considering there has been a constant contact between you and them for communication, etc...why not use the same tool to tell them, prevent them that you think of suing...a simple question adressed to them!...and see what happens?...

The 'veiled threat' tactic? LOL

Works in civil litigation sometimes. Must not for immigration or it would have been suggested to us.

[rebeccajo 14]

I have to admit I've NEVER heard of this. And I and several others here have done extensive research on this 'blackhole' beyond VisaJourney. I suppose it's another possible avenue and I am not putting you down, but I've honestly not heard of this.

Also, I notice from your timeline that you didn't file the I-130 until September 2006 but filed your AOS in 2004? If so, isn't that most likely the reason for your greencard delay?

Actually this practice is recommended. I talked to two attorneys and they both said that you "could" possibly file the writ directly but it is "preferred" that you write to them and tell them to take action in x number of days (30 - 60 or so) and in many cases they do act. So you won't even need to file the writ. Of course they could play bluff on you! In that case, you would file it.

Refined infos, thanks!!!...For no. 5, one idea: instead of filling the Writ, and, considering there has been a constant contact between you and them for communication, etc...why not use the same tool to tell them, prevent them that you think of suing...a simple question adressed to them!...and see what happens?...

The 'veiled threat' tactic? LOL

Works in civil litigation sometimes. Must not for immigration or it would have been suggested to us.

Edited January 6, 2007 by rebeccajo

[imhrb 0]

oops, that was a typo. I filed for whole 485 package (130, 485, 765) back in September of 2004.

This website gives a good overview of the Writ process. It mentions giving the CIS 30 days before filing the actual writ.

http://www.visalaw.com/05feb3/2feb305.html

I have to admit I've NEVER heard of this. And I and several others here have done extensive research on this 'blackhole' beyond VisaJourney. I suppose it's another possible avenue and I am not putting you down, but I've honestly not heard of this.

Also, I notice from your timeline that you didn't file the I-130 until September 2006 but filed your AOS in 2004? If so, isn't that most likely the reason for your greencard delay?

Actually this practice is recommended. I talked to two attorneys and they both said that you "could" possibly file the writ directly but it is "preferred" that you write to them and tell them to take action in x number of days (30 - 60 or so) and in many cases they do act. So you won't even need to file the writ. Of course they could play bluff on you! In that case, you would file it.

Refined infos, thanks!!!...For no. 5, one idea: instead of filling the Writ, and, considering there has been a constant contact between you and them for communication, etc...why not use the same tool to tell them, prevent them that you think of suing...a simple question adressed to them!...and see what happens?...

The 'veiled threat' tactic? LOL

Works in civil litigation sometimes. Must not for immigration or it would have been suggested to us.

[rebeccajo 14]

Thanks for the link imhrb. And the clarification on your timeline.

Personally, those kind of weblinks make me nervous. Very nervous. But then I work for an attorney who is on the Ethics Committee for the WV State Bar, and unauthorized practice of law makes me very jumpy.

[knowledge 0]

Refined infos, thanks!!!...For no. 5, one idea: instead of filling the Writ, and, considering there has been a constant contact between you and them for communication, etc...why not use the same tool to tell them, prevent them that you think of suing...a simple question adressed to them!...and see what happens?...

The 'veiled threat' tactic? LOL

Works in civil litigation sometimes. Must not for immigration or it would have been suggested to us.

Veiled thread? no, it's the truth, plain, transparent and direct. I call it a strategy to communicate, if you have already the open door of communication. It's mild, progressive till the harsh intervention is needed with the help of the law, and I believe, being honest with them and maybe challenging them on their. It's saying to them: hey guys, let's stop this game now, we have done what was our duty to do on many levels, now we really have enough, and oh, by the way: we have rights too, can you please see to fix the issue now. Actually this is of some sort of human rights level...we are not ina black hole, we are on the planet earth...the sun is still shining every day...

I can understand that if you work in a law milieu, the legal action is the ultimate solution, but, what i'm saying here, there are steps, a transitional phase before going legal...the only thing is how to articulate a few words that will make them act...in the right direction!!!...the power of words sometimes can work...Whatever decision you'l make, i hope it's going to work soon!!