Free Reply Memorandum - District Court of California - California

Case 4:07-cv-02188-WDB

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Filed 11/29/2007

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1 SCOTT N. SCHOOLS, SC SBN 9990 United States Attorney 2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney 3 Chief, Civil Division EDWARD A. OLSEN, CSBN 214150 4 Assistant United States Attorney 5 6 7 Attorneys for Defendants 8 9 10 11 12 QIN CHEN, 13 14 v. Plaintiff, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) No. C 07-2188-WDB ) ) ) ) ) DEFENDANTS' REPLY ) ) ) ) ) ) ) ) ) 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6915 FAX: (415) 436-6927

15 MICHAEL CHERTOFF, Secretary of Department of Homeland Security; 16 EMILIO T. GONZALEZ, Director of the U.S. Citizenship and Immigration Services; 17 CHRISTINA POULOS, Acting Director of USCIS, California Service Center; and 18 ROBERT S. MULLER, Director of Federal Bureau of Investigation, 19 Defendants. 20 21 22

I. INTRODUCTION The defendants wish to stand on the arguments they have made in their motion for summary

23 judgment and in their opposition to plaintiff's cross-motion for summary judgment. The 24 defendants also acknowledge this Court's oral ruling in Xin Xu v. Chertoff, 07-0938-WDB, in 25 which the Court ruled that a I-485 application that was pending for approximately the same 26 amount of time as the plaintiff's I-485 application in this case, was unreasonably delayed. Finally, 27 the defendants wish to provide the Court with some additional information regarding the 28 availability of a visa for the plaintiff if and when her I-485 application is granted.
DEFENDANTS' REPLY C 07-2188 WDB

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II. DISCUSSION By statute, only about 140,000 aliens and their derivative relatives can get green cards through

3 employment-based categories during each fiscal year, with percentage limits set by Congress per 4 country and within each preference category. Supplemental Declaration of Gerald Heinauer ¶ 7; 8 5 U.S.C. § 1151(d) Unused visa numbers under the annual quota do not carry over from one fiscal 6 year to the next. Id. Every attempt is made to maximize number use under the annual numerical 7 limit. Id. These visa numbers are tracked and issued by the Department of State. Id. The priority 8 date for visa number purposes in the plaintiff's case is March 11, 2004. Id. 9 Visa numbers for second preference workers from China will be unavailable for the month of

10 December 2007 due to a visa retrogression from the U.S. State Department. Supplemental 11 Heinauer Declaration ¶ 8. In September 2007, the Department of State indicated there would be 12 visa numbers for second preference Chinese workers available for petitions bearing priority dates 13 earlier than January 1, 2006. Id. USCIS will not be able to complete plaintiff's case in December 14 2007. Id. Her case cannot be completed until a visa number becomes available to her. Id. 15 The purpose of an I-485 application, in conjunction with an I-140 petition, is to obtain lawful

16 permanent resident status for the alien worker and any qualified derivative spouse and children. 17 Supplemental Declaration of Gerald Heinauer ¶ 9. There must be a visa number available in the 18 relevant category at the time an employment- based adjustment of status application (I-485) is 19 filed. Id. 20 After security checks are completed and all necessary evidence is obtained and evaluated, the

21 application for adjustment of status may be approved, in the exercise of discretion, if a visa 22 number is available at that time and is authorized by the Department of State. Supplemental 23 Heinauer Declaration ¶ 11. 24 Plaintiff was able to file her I-485 application concurrently with her Form I-140 on March 11,

25 2004, because visa numbers were current for all second preference workers according to the 26 February 2004 visa bulletin. Supplemental Heinauer Declaration ¶ 12. However, according to the 27 December 2007 visa bulletin, the new fiscal year cut-off dates for the second preference Chinese 28 applicant will regress to January 1, 2003.
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In an attempt to generate increased demand by USCIS for adjustment of status cases before the

2 end of the fiscal year, the Department of State opened all employment-based visa preference 3 categories (with one exception not relevant here) for all countries in the July 2007 visa bulletin. 4 Supplemental Heinauer Declaration ¶ 18. As a result of a USCIS backlog reduction effort during 5 June 2007 through July 1, 2007, involving almost 60,000 cases, the Department of State 6 announced on July 2, 2007, that there would be no further authorizations of visa numbers during 7 July. Id. Nevertheless, USCIS continued to permit new applicants for adjustment of status to 8 apply under the July 2007 visa bulletin's "current in all categories" listing for purposes of meeting 9 the requirement that a visa number be available at the time of filing the adjustment of status 10 application. Id. 11 Visa number allocation requests are made at the time a case is deemed to be finally approvable

12 for adjustment of status, if visa numbers are available in the applicable preference and per country 13 category on that date. Supplemental Heinauer Declaration ¶ 19. The Nebraska Service Center was 14 operating and visa number requests were made on Sunday, July 1, 2007, for cases that were 15 deemed ready for final adjudication. Id. Visa numbers were unavailable for all employment-based 16 categories during August 2007. Visa numbers will be unavailable for second-preference Chinese 17 cases during December 2007. Id. 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS' REPLY C 07-2188 WDB

Dated: November 29, 2007

Respectfully submitted, SCOTT N. SCHOOLS United States Attorney

/s/ EDWARD A. OLSEN Assistant United States Attorney Attorneys for Defendants

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