THREAD: In a few min (2 pm Eastern) I'll live tweet our status conference in #Chakrabarti, our lawsuit challenging USCIS' waste of employment-based visa numbers and failure to timely adjudicate green card applications #EBAOS. There is no public dial-in for this one.
2/What's this call about? We requested a preliminary injunction: immediate order for USCIS to decide cases and/or reserve visas. USCIS opposes, wants the case split up & sent to dozens of states. We don't know what the judge will focus on but @jeffjoseph is ready for anything!
3/ Will we be allowed to speak this time? As Jeff shared in last night's Youtube video (), if the judge repeats last week's stunning refusal to hear plaintiffs counsel, we'll be requesting that he give the case to someone else who can be impartial.
4/ As far as we know, there will not be any USCIS employees on this call giving unsworn testimony (oops I mean... background information?).
5/ And if you want a recap of what happened last time, here is my favorite section of the transcript. it's confusing bc the judge keeps calling Joseph by other names but it's correct as to who is speaking. 
6/ Continued...
7/ Ok, scarfing down my lunch. See you in a few minutes.
9/ Here we go. @jeffjoseph @ckuck @gsiskind & Johnna Main Bailey for the plaintiffs, Leduc AUSA for USCIS and someone from OIL whose name I missed.
10/ Judge "I gather it is unlikely the agency will be able to willingly process these plus applications by Sept 30"
Answer: "the agency is willing but unable to do this at the 11th h
Answer: "the agency is willing but unable to do this at the 11th h
11/ Judge: are there other similar applicants who would like their apps adjudicated by Sept 30?
LeDuc: Yes.
J: Any idea of the number?
LeDuc: Probably over 100k more. (WHY isn't she prepared with this BASIC info??)
LeDuc: Yes.
J: Any idea of the number?
LeDuc: Probably over 100k more. (WHY isn't she prepared with this BASIC info??)
12/ Then she backtracks and says "at least there are several hundred"
J: Govt says there is no way the agency can hold visas beyond Sep 30 to adjudicate these requests in a more or less expedited fashion?
A: That's correct, INA precludes USCIS from holding bc of rollover
J: Govt says there is no way the agency can hold visas beyond Sep 30 to adjudicate these requests in a more or less expedited fashion?
A: That's correct, INA precludes USCIS from holding bc of rollover
13: J: is it fair to say that these 196 plaintiffs would be given priority treatment over these several hundred others for no reason other than that they filed a suit?
A: Yes, USCIS is right now trying to adjudicate all of the applications according to first-in-first-out (FALSE)
A: Yes, USCIS is right now trying to adjudicate all of the applications according to first-in-first-out (FALSE)
14: (we know this is false bc we are hearing recent apps getting adjudicated and older ones still pending bc their files are still stuck in a cave in Missouri - discussed at last week's hearing)
15/ J: Where are they being adjudicated?
A: None of these 196 are being determined in MD. Nebraska, Texas service centers and various field offices.
J: What % of these applications might be acted upon by Sept 30?
A: As to plaintiffs, currently 14 of 196 have been adjudicated
A: None of these 196 are being determined in MD. Nebraska, Texas service centers and various field offices.
J: What % of these applications might be acted upon by Sept 30?
A: As to plaintiffs, currently 14 of 196 have been adjudicated
16/ A ctd: for this fiscal year as of Aug 30, USCIS has adjudicated 148,694 apps of 262,288 limit. USCIS projects that by Sept 30 will have adjudicated 179,570 applications out of those 262k limit.
17: J: of the plaintiffs in this case, what happens if they are not adjudicated by Sep 30?
A: They keep their place in line, do not have to reapply, don't pay another fee, by statute the unused visa #s must be rolled over into the family categories (AND thereby WASTED)
A: They keep their place in line, do not have to reapply, don't pay another fee, by statute the unused visa #s must be rolled over into the family categories (AND thereby WASTED)
18: (this is super misleading bc she does not mention that the rollover literally makes the visa #s disappear bc it doesn't increase the family maximum.)
19: Project that there will be enough to process these plaintiffs in the next FY (this is also misleading bc of the Oct visa bulletin) and the rollover would not go to India/China (this is factually and legally WRONG)
20/ Judge turns to @jeffjoseph for comment/statement.
Joseph: Explains actual history of how the categories and caps work (which govt attorney clearly does not understand, unfortunately)
Joseph: Explains actual history of how the categories and caps work (which govt attorney clearly does not understand, unfortunately)
21/ Joseph ctd: Now explaining last year's three-year jump in India EB-3 visa bulletin and the "window of opportunity" last October for folks to file green card apps, pay $1225, get in line.
22/ Joseph ctd: Last Oct USCIS said in public statements that they would expect ALL EB numbers to be used this fiscal year and India and China backlog would be eliminated for the first time. "Govt created the ultimate bait and switch.
23/ Joseph ctd: clarifies what actually happens when visas are wasted -- makes backlogs worse next year. Govt is incorrect on this - having failed to use the extra numbers this year, backlog just keeps getting longer.
24/ Joseph ctd: wrt Maryland venue: Renaud (pg 33 of transcript) stated "at a very high level frankly it's the director" who sets priorities for the agency, Ur Jaddou, who sits in MD. It's a POLICY decision made at high levels, not service centers / field offices.
25/ Joseph ctd: We are challenging a policy that's applied across these 196 plaintiffs and hundreds of thousands of others, "so it's only appropriate that we file where those policy decisions are being made."
26/ Joseph ctd: "There's no plan, and there hasn't been a plan since we started asking the question" - points out that govt couldn't answer basic question about how many of plaintiffs' can expect to be adjudicated this year. It takes 1.63 hours to adjudicate an I-485.
27/ Joseph ctd: Lives are put on hold, people will lose jobs, children will age out .... judge interjects to ask him to stop.
28/ Judge turns to @ckuck, who points out that the "first-in, first-out" claim is incorrect. And we know from their own plaintiffs, they are processing out of order, and Nebraska vs Texas are processing in very different time frames.
29/ "The concern here is that the information being provided by the government is not accurate" (nice way of saying they either don't know or thwy are lying to you)
30/ Kuck continued: explains the ability to hold over, and how J Mehta in District of DC that the court can make them hold over visa numbers beyond the fiscal year.
31/ Judge asks govt counsel to respond.
LeDuc "Plaintiffs are now saying there are some policy that USCIS has somehow delaying adjudication but they allege no policy in their complaint or motion... they don't ask the court to overturn any policy"
LeDuc "Plaintiffs are now saying there are some policy that USCIS has somehow delaying adjudication but they allege no policy in their complaint or motion... they don't ask the court to overturn any policy"
32/ (Apparently she didn't read the whole complaint because we also challenge their policy of visa number allocation)
LeDuc claims these applications are all different. No they aren't - they're all simple EB AOS from 2 countries in 3 categories.
LeDuc claims these applications are all different. No they aren't - they're all simple EB AOS from 2 countries in 3 categories.
33/ "When plaintiffs say there are higher ups making decisions" - they have to follow what Congress enacts, "they never said that USCIS has to issue every single one" of the visas, because of the rollover provision.
34/ "There is no policy issue here. There is no involvement from MD HQ in these individual applications" (maybe that's a problem if HQ isn't fixing this??)
35/ She says plaintiffs have been delayed 7-9 months which is not really unreasonable. (This is by definition false -- all of our plaintiffs were filed in 2020 or earlier, so now 9+ months.)
36/ More excuses from government counsel: medical forms, FBI checks, etc take time (then why didn't you RFE for medicals last year when you received these applications?)
37/ LeDuc continued: following up on Q of pending applications, now pending 278,881 pending EB-1, EB-2, EB-3, EB-4 and EB-5 (uh this shows she has no idea what she's talking about -- EB-4 and EB-5 are irrelevant to this)
38/ EB-4 & EB-5 are about 25k of the total. These are special immigrants including abused / neglected / abandoned children, and investor green cards. Not at issue here.
39/ LeDuc addresses other cases where court has held over visa numbers like our win in #Goh #DV2021 - Judge interrupts and says he has read the papers "I don't want you to tell me why any case does or doesn't apply. I can read the cases and decide whether they are relevant."
40/ Judge: I convened this conference bc there are 16 days left in the FY. Plaintiffs are asking "enormous / impossible task" (adjudicate all applications by 9/30) or order agency to reserve beyond 9/30.
41/ Judge: I need to tell you why I am because I need to give plaintiffs fair warning about what is likely to come. I am telling you now although I have set out for briefing by the parties for longer period of time to respond to change of venue by my hand is being forced now..
42/ I am inclined to order transfer of venue of these applications to the jurisdiction where the plaintiffs reside. So I don't need to get to the merits of preliminary injunction but if I reach that point I am inclined to deny.
43/ Judge ctd: plaintiffs counsel put the burden on the government and the court (NO, congress put it there)...
Amazing he is telling us that he has already decided both of these issues without reading our response.
Amazing he is telling us that he has already decided both of these issues without reading our response.
44/ "Here's why I'm telling you this. There are 2 weeks remaining for plaintiffs counsel to... (what exactly? I'm confused what he's saying / implying we could or should do) - "I strongly believe these cases should be transferred out"
45/ "I believe this is basically a request to take 196 people ahead of another 240k+" (that is NOT what our lawsuit is -- has he not read our complaint or does he not care?)
46/ "You can expect an order from me by September 30 that these cases will be transferred notwithstanding the opposition that will be filed by plaintiffs; I will not be ordering that the agency adjudicate all 196 apps or reserve visas"
47/ (also shows he doesn't understand what we're asking -- we aren't asking visa numbers only be held for our plaintiffs, we are asking that the ALL be held) - he also says the case was filed too late and could have been filed in Feb (nonsense -
48/ (we couldn't have filed in Feb because USCIS hadn't even issued receipts for most of our plaintiffs, and it would have been premature to argue unreasonable delay 7 months before the deadline and only a few months after filing)
49/ "You have my word as to where I am and you should act accordingly." (is he threatening that we should agree to transfer to avoid a negative decision on the preliminary injunction...?)
50/ Judge confirms that court reporter will provide a transcript of this. Ends the call.
51/ Whew. That was wild. Our response to the government's motion isn't even due until Friday so he is telling us he has already decided without even reading or considering our written arguments.
52/ Going to debrief with the rest of the team and then we will be in touch with our plaintiffs with into and analysis re: next steps. Very disappointed that the judge is not understanding our arguments and allowing govt counsel to misstate the law and facts.
53/ Plaintiffs, I’ll be sending you an email in a few minutes with a time-sensitive request and we’ll have a live call this evening to explain our strategy and next steps. This may end up being a blessing in disguise - getting out of this judge’s court!
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