The class action lawsuit against the Department of State and the USCIS that the American Immigration Law Foundation (AILF) promised last week to file is now being filed.
The AILF said that it has gathered the materials it needs from the potential plaintiffs---those who submitted an adjustment of status application in July 2007.
If the lawsuit is certified as a class action by the court, all those who meet the class description will benefit from the court order. No signature from them is required to be included in that class.
The AILF is a non-profit organization committed to the advancement of fundamental fairness and due process under the law for immigrants.
In the lawsuit it will argue that the rejection of the otherwise properly filed adjustment of status applications is contrary to the Code of Federal Regulations.
In addition, the public was not notified of this change in policy and this lack of notice greatly undermined the public confidence in the transparency of the USCIS policy and procedure. This placed an added burden on the USCIS.
If the AILF is successful in the lawsuit (as it expects it will be), the adjustment applications will be treated as if they had been filed as of the date the applicants originally tried to file them. Although visa numbers are not available, they will occupy an earlier place in the line than those who file later. And since the applications will be pending, they will be entitled to work authorization and travel permit.
Should those who have not filed yet file now?
The AILF says that this is a decision for the potential applicant to make. However, it is of the opinion that those who file in July and receive rejections would have the strongest chance to benefit from a favorable result.
There are cases where applicants did not apply or permitted the agency to “front desk an application”, and these applicants were not eligible for the relief given by the court.
We believe that the benefits of filing an adjustment of status application even if it will rejected far outweighs the disadvantages.
If a potential applicant does not file will they be included in the AILF class action suit? AILF has said that they will include them as plaintiffs. But the court may consider them as a separate class.
What about the low skilled workers who filed their application in June? They will represent a separate class.
It should be recalled that there were a number of this class of workers that includes domestics and home health aides who were eligible to file in June such as Filipino nationals with priority dates before October 1, 2001. But the USCIS announced that as of June 6, 2007, it was no longer accepting any adjustment of status applications.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at http://www.seguritan.com/.