• WOM,用咱们中国人的话来说就是告政府不作为.这是有专门的法律条文的.关键就看你总么说
• Warning: for Citizenship case, there is different statute, the process is similar though.
• 这几类人不用考虑WOM:
  1. I140还没批的
  2. NC少于2年的,虽然没有法律规定,可以前的案例都是2年以上,太短了博不到法官的同情心.
  3. 不急着想要绿卡的,心想,看你FBI急还是我急
  4. 胆小如鼠者,我知道有人I140早就批准了,I485也交了好就,连家里有重病人也不敢用AP回国,总是担心这问题,那问题,AP不就是让你临时代替绿卡的,这还担心,真是越活越没志气,都被这绿卡害了没人生了,太不值了.这种人肯定没勇气和FBI, USCIS打官司
  5. 自己怕麻烦又不想花钱请律师,这世上就没这好事
  6. 你的I-485依据的批准可能有潜在问题,如怀尼你婚姻真实性,以前身份有问题的,比如两身份转换有空档,被拘捕过,就I-485问题撒谎,是党员不报等等...

  总之,是身正不怕影斜, 自身没问题就告,. 不要担心USCIS报复,他们不敢,再说了,你这小人物也不值他们做小动作,批你绿卡对我们来说是大事,可对他们来说是本职工作.如果说面对滚滚而来的诉状,他们能做的是要政府律师尽量挡住, 比如说以前是只要递上状子,他们行动,一告一个准(也因此有些人掉以轻心,案子不好好些,等他们一认真起来,又慌了手脚),现在是先拖(ask for extension a few times),然后等你等到老时,再来个MTD(motion to dismiss)挑你刺, 没耐心和好好准备的人就跑了,等你递上反驳信,你要是再犯几错,他们又逮着你了,再要碰上对移民不感冒的法官,你处境就更难了.总之,道路是曲折的,前途是光明的.成功是属于抗争者

• 是请律师还是自己打(PRO SE)就看你总么想的,看这里的分析,总之都不容易.因WOM对很多律师来说都还是新事物,经验和我们没差别.我有两朋友,找的律师都是WOM"处男".为此还多花一两千(看来什么和"处"一沾边都超值), 因为是要从头开始写材料,那他们的时间可宝贵,他们宝贵的时间都用在跑"推销",案子吗自有廉价的帮助手做,反正都是按样本批量加工,这样钱才来的快. "经验告诉我，找律师、找代理，不要追求名气和学历，最重要的是要找一个敬业的、有人品的人—— 这是不容易的。去了好几个事务所，听他们的秘书一开口，很多人法律基本常识欠缺，让人没信心。" 不否认有好律师,我看到过几份 Ojection to MTD, 很有新意,也是花了很多工夫的.忘了说,上面提到的俩案子,一个已经批准了(Jan 2007)(5年多NC,不容易呀,而且是赶上WOM大好时光,都没得到MTD就批了,这律师显不出水平), 另外一个０７年7月批了(4年多NC),可是在COMPLAINT有一低级错误,新手还是新手呀.把我们的命运交给他们手上还真是不幸运呀

• 最近一些成功例子证明对NC卡住两年以上的案子，WOM还是可行的，实际多上很多案例都引用２年作为判断USCIS/FBI拖延是否合理，虽然案子也是要求越来越高，０７年前基本上是你递上案子NC就给你加快，现在是９９％你都会拿到MTD，然后你要么发大半银子请律师，要么自己发很多时间去准备，然后就等法官了，如果法官没把你的案子直接撤消，那你基本上成功了，要是法官很快判你胜利，那你一个星期之内就等绿卡就是了.即使法官不直接判决你胜利，他／她能定个日子出庭都会迫使USCIS/FBI采取行动把你的案子了结，要真上庭，他们没那么多功夫陪你这对他们无关紧要的案子，他们也没多少胜算，赢了也没什么，可输了可影响他们的声誉。对他们以后发展没一点好处了。在说了，好律师都到律师楼去了，政府律师总体水平不高，真要上庭，未必输给他们.

  但是不管你是请律师还是自己干，前期的准备的工作还是该你做 。在WOM之前，你必需要进行行政上的努力
  "To be eligible for mandamus relief, a plaintiff must establish that: (1) he/she has a clear right to the relief sought; (2) the defendant holds a plainly defined and mandatory, non-discretionary duty to do the act in question; and (3) no other adequate remedy is available"
  第三条就是说在递WOM只前，你必须试了所有的行政上的努力.是多次后还不行呀，WOM是你的最后的路了.相信这些WOM准备的人也都是尝试了所以行政手段了. 除非你有耐心等, 或者是你确信你所在的法官很不友好，你都该出手了

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• check the processing data for I485. https://egov.uscis.gov/cris/jsps/ptimes.jsp according to USCIS, if your I485 received 1 months,
  they you should call USCIS the number on your I-485 receipt. Typically this means you are the victim of the notorious "Name Check"(NC). Then you shoud start to act for future references, which include:
  1. Call USCIS service center (the phone number on your I-485 receipt). Typically you will get the letter a month letter, saying that your case is pending due to name check.... please call back if do not hear anything from us within 6 months. keep the receipt.
  2. send letters to your Congressman/Senators of your state, they all have offices to deal with immigration issue. You need to download the disclose form from their website. Send your letters with this form via certificed mail. Keep all receipt. see sample letter
     Check here to find out Senator/Congressman for your district
     Senator U.S. House of Representatives
  3. Send letter to First Lady, download sample letter
  4. Contact CIS Ombudsman. you can a case problem to the CIS Ombudsman (Mr. Prakash Khatri) using DHS Form 7001. There is no fee for ting a problem. Although the Ombudsman cannot adjudicate your application or offer any legal advice, he may be able to provide assistance if you have an ongoing or urgent issue with the USCIS/DHS. Click here for more informaiton
  5. Request records about your name or ientification information from FBI, pursuant to Freedom fo Information-Privacy Acts (FOIPA)
  6. Make appointment with INFOPASS to inqure your case at local office. Print TWO copies of the appointment letter, since they will take ONE copy away, you need to keep one copy for future reference.

  All above work will make your case to be eligible for ONE of three requirments for mandamus relief: (3) no other adequeate remdey is available.

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• FIND the RIGHT COURT for your case here based on your residue.
• search google to find the website of your federal court. Remember, this is for "federal" court, not your
  state/city court. find the phone for "PRO SE" office. Take MA for example, Court website for MA district: http://www.mad.uscourts.gov/ (exclude Springfield), call 617-748-9130 or 617-748-4123, state that you are "PRO SE" and ask them to send your copy of "PRO SE" package. Read carefully. Remember, different court have LOCAL rule. Make sureyou follow the rule.
• WRITE your complaint.
  the complaints is made up of four main parts:
  1. The name and adress fo the plaintiff and the defendant.
  2. The JURISDICTION or reason your case is being filed in this federal court.
  3. The ALLEGATIONs or claims that you are making against the defendant.
  4. The RELIEF you are seeking from the court. This can be money or something you want the judege to make
     the defendant do or stop doing. Here For I-485, we ask FBI to complete the name check and USCIS adjudicate (NOT approve, here many make this mistake) the application.
• file your complaint with A Civil Cover Sheet, A Civil Category sheet, A completed SUMMONS for each defendant, and/or other form required by local rule. All forms should be able to download from your court website. See a sample Civil Cover Sheet.

when you go to court clerk, for example, if you have 4 defendants, bring AT LEAST 8 copies of EACH documents. 4 for 4 defendant, 1 for COURT, 1 for yourself, and another for US attorney (they represent US government agency). The Clerk will assign a case number, and randomly assign a judge to your case, stamp all your copy. Then you mail those stamped Summon with "certified" mail (Fed.R.Civ. reqiures delivery of the summons and complait by registered or certified mail) (that means priority mail is ineffective) which have number to track the mail to all defendant, plus US attorney, so you know when they deliver your Summons to the defendants. Once they deliver all the mails(you do not need to wait for the return receipt), Use the return receipts to fill up the back pages (or the second page) of the summons form. File the back pages (second pages) with the court, and send a copy to the LOCAL US Attorney office (Attn: Civil Process Clerk). This is the "CERTIFICATES of SERVICE". See a sample here.

The purpose of the certificate of service is to allow the court to determine whether service of the documents was actually accomplished in accordance with the requirements of the law. The certificate of service must state:
1. The date service was completed;
2. The place where service was completed;
3. The method of service used;
4. The names and street address or email address of each person served; and
5. The documents that were served.

** Plaintiff must serve the Defendants within the 120-day period in compliance with F.R. Civ. P.4(c)(1), 4(i)(2)(A).

Then they will start the clock(for MA, 60-day), the defendant need to response your complaint within 60 days. FYI, you may also ask the clerk whether they can forward a copy of your complaints(including all other necessary materials) to US attorney. I know in MA, they can forward for you since both District court and US Attoreny are in the same building.

* Why 60-day rule:

Rule 12(a)(1) of the Federal Rules of Civil Procedure states that unless a different time is specified in a United States statute, most defendants must file a written response to the complaint within twenty days after being served with the summons and complaint.

BUT

Rule 12(a)(3)(A) of the Federal Rules of Civil Procedure states that the United States, an agency of the United States, or an officer or employee of the United States sued in an official capacity must file a written response to the complaint within sixty days after the United States Attorney is served

• Since the defendants are federal government, US Attorney will represent all defendant and take care of the case. From now on, you do not to contact with individual defendant any more, just the US attorney. Again, each district have individual attorney, find the right one for you.
  For MA http://www.usdoj.gov/usao/ma/ You can try to contact with the AUSA who take care of your case. For MA plaintiff, called AUSA office 1 month AFTER filed the "CERTIFICATEs of SERVICE". (First call clerk phone (617) 748-3100, ask for Civil Division, then introduce yourself, and tell them your case number, then they will transfer you to the Attorney who take care of your case). At that time, the AUSA may tell you that he still undecide, but most likely will file MTD.
• Prepare your response to MTD. This is really time-consuming and challenge task. However, if you have lots of templates, you will notice that it is not that hard (much easier than the I-140 petition letter). You need to response within 14 DAYS (Sure you can extend, but why you want to wait longer ?) Get trouble to prepare the response to MTD, we have premium service here , typically it will ask for >$5,000 for any law firm to prepare this response.
• 3-4 weeks after you response the MTD, if you are not bad luck, you will notice that USCIS/FBI starting to touch your case.
  这时候就看各方面的因素,(你的反驳信,政府律师态度,法官态度,USCIS大环境等等,你的命运会是什么呢?
  1. 不等法官出面,NC过了,绿卡批了,皆大欢喜局面
  2. 政府律师提交MTD, 法官出面,判你胜,限期USCIS/FBI完成任务.这AUSA/USCIS/FBI 最不想看到的结果,因为不单是这个案子的问题,而是一旦有先例,后来案例都会借用这案子, 而要求做出同样的判决,那政府律师不是帮自己的砖头砸自己的脚吗?所以现在虽然政府律师大多都能提交MTD,别紧张,那是他们的策略,我们按招应付就行
  3. 政府律师提交MTD,法官判政府律师胜利,你的案子被撤消,以后政府律师提交的MTD都会引用这一胜利的案例,那你就会变得臭名昭著了.
     有人问,这会不会影响以后你的案子批准.只要你的I-485没有我上面提到的几种问题,通常不会有问题.别用中国传统的思维思考,在美国告别人是再正常不过了,只是要你的理由不充分,案子很容易就被撤消掉.

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• It is very common for AUSA file MTD now. If you are afraid to deal with MTD, then you should never start from the beginning. If you have lot of money, then find a lawyer to fight for you. Fortunatelly here we provide this service here with a very limited fee.

• As of May 2007, USCIS reported a staggering 329,160 FBI name check cases pending, with approximately 64 percent (211,341) of those cases pending more than 90 days and approximately 32 percent (106,738) pending more than one year.
1. < 3 months 117,819 35.8%
2. 3 - 6 months 55,749 16.9%
3. 6 - 9 months 28,029 8.5%
4. 9 - 12 months 20,825 6.3%
5. 12 - 15 months 14,133 4.3%
6. 15 - 18 months 13,931 4.2%
7. 18 - 21 months 11,035 3.4%
8. 21 - 24 months 12,398 3.8%
9. 24 -27 months 11,765 3.6%
10. 27 - 30 months 6,600 2.0%
11. 30 - 33 months 5,732 1.7%
12. >33 months 31,144 9.5%

Nearly 320,000 people were waiting for their name checks to be completed as of Aug. 7, 2007, including more than 152,000 who had been waiting for more than six months, according to the U.S. Bureau of Citizenship and Immigration Services. More than 61,000 had been waiting for more than two years.

Interesting, USCIS may pay the FBI double fee to expedite name check. USCIS has quoto up to a few hundred FBI name checks per month. No wonder, why FBI is not eager to devote more resources to clear the backlog.

When the Name Check start ?
Right after you submit I-485. Many luck people get their Name check cleared a week later.

What does WOM stand for ?
Writ of Mandamus. It is a writ (more modernly called a "writ of mandate") which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so. Examples: After petitions were filed with sufficient valid signatures to qualify a proposition for the ballot, the city refuses to call the election, claiming it has a legal opinion that the proposal is unconstitutional. The backers of the proposition file a petition for a writ ordering the city to hold the election. The court will order a hearing on the writ and afterwards either issue the writ or deny the petition. Or a state agency refuses to release public information, a school district charges fees to a student in violation of state law, or a judge will not permit reporters entry at a public trial. All of these can be subject of petitions for a writ of mandamus.

What is MTD ?
Motion to dismiss, which means defendant attorney ask the court to dismiss the case for various reasons. A motion to dismiss pursuant to Rule 12(b)(6) test the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim when the claim lacks a cognizable legal theory or there are insufficient facts alleged to support plaintiff's theory. In deciding a motion to dismiss for failures to state a claim, the court's review is limited to the contents of the complaint.

Will be different between I-485 case and Naturalization case ?
Almost all the judges have agreed that Declaratory Judgment doesn't provide an independent basis of jurisdiction. If an N-400 applicant had an interview then 1447(b) provides the district court with jurisdiction otherwise the applicant has to use Writ of Mandamus or APA to provide jurisdiction

So if you already done the interview, then there is clear statute you can refer to for your N-400 application: 仒1447(b)- your case should be adjusted within 120 days after interview. To avoid lawsuit, now USCIS will NOT schedule the interview unless your NC is cleared. Then you will have to fight with similar argument as I-485.

What is MSJ ?
Motion For Summary Judgment. It is a request made by the defendant in a civil case. Asserts that the plaintiff has raised no genuine issue to be tried and asks the judge to rule in favor of the defense. Typically made before the trial.

What's Summons ?
A judicial summons is addressed to a defendant in a legal proceeding. Typically, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person, and that a file has been started in the court records. The summons announces a date by which the defendant(s) must either appear in court, or respond in writing to the court or the opposing party or parties.

How do I know if I am traped into NC ?
Typically USCIS will send Name Check request to FBI right after they received your I-485 application. Lots of luck guys get the Name Check result back from FBI within 1 week(like my wife). you can make an appointment with local USCIS to inqure your NC status via INFOPASS
http://infopass.uscis.gov/
or make a calling to Service Center as following:
Call 1-800-375-5283 Press 1亅>2->2->6->1
Enter your receipt number
press 1 (now listen to the case update info....)
press 3
press 4
(If you hear a male voice prompting you to hold the call, that means the
call will be answered by an IO. But if it says no IO is available, it will
redirect you to NSC and you can hangup and try again)

This is a way to talk to Immigration officer at TSC or NSC. If they are in good mood, usually they will tell you if your name check is clear or not. If your name check is clear, then you know that the AUSA was telling you the truth.

Typically how much for Lawyer to file WOM for me ?
$3,000-7,000, most charge for $5,000. See here for details

How much it will cost for PRO SE (file by myself)
round $350 for filing fee, plus unlimited amount on case search. Still it will be much cheaper than hiring a lawyer.

Who should be on the defendant lists ?
Miachael Chertoff, Secretary
Department of Homeland Security
Office of General Counsel, USDHS
Washington, DC, 20528

Jonathan Scharfen,
Acting Director of US Citizenship and Immigration Service
c/o Office of the General Counsel
USDHS, Washington, DC, 20528

Michael B. Mukasey, Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Robert S. Muller III, Director, Federal Bureau of Investigation
935 Pennsylvana Ave, NW
Washington, DC 20535-0001

* It is important to put FBI on the defendant list. There is a case, when Plaintiff didn't sue the FBI; USCIS basically said that the name check is stuck at FBI, it is not their fault; the judge bought this and said in the opinion & order, that he can't compel FBI to complete the name check, because FBI is not a defendant in the lawsuit.

if you have or expect to have visa issue (PD retrogression), then also put her on the defendant list:

Condoleezza Rice
United States Secretary of State
U.S. Department of State
2201 C Street NW
Washington, DC 20520

plus the service center Director where you filed your application.

for VSC:
Pail E Novak, Director
Vermont Service Center
75 Lower Welden St
St. Albans, VT 05479-0001

For TSC
Evelyn Upchurch, Director
USCIS Texas Service Center 4141 North St. Augustine Road
Dallas, TX 75227

for NSC
Gerard Heinauer , Director
USCIS Nebraska Service Center
850 S. Street
Lincoln, NE 68508-1225

for CSC
Christina Poulos, Director
USCIS California Service Center
24000 Avila Road, 2nd Floor, Room 2312
Laguna Niguel, CA 92677


It is OPTIONAL to put Michael B. Mukasey, Attorney General of the United States on the defendant list (we recommend to add it, since it is much easier to drop than to add defendant), since they will represent those government agencies anyway, that means you ALWAYS need to send a copy to the Attorney office of YOUR DISTRICT. Actually once you send out summons to all defandants, you only need to contact with AUSA of your district.

What's statutes I should cite for MTD ?
for I-485 and N-400 without interview: 28 U.S.C. §1361. 28 U.S.C. §1331. 5 U.S.C. §551 and 701

To be eligibel for mandamus relief, a plaintiff must establish that:(1) he has a clear rigth to the relief sought; (2). The defendant holds a plainly defined and mandatory, NON-DISCRETIONARY DUTY to do the action in question; and (3) the plaintiff has exhausted his administrative remedies and no other adequate remedy is available

For N-400 with interview: 8 U.S.C §1447(b), plus 28 U.S.C. §1361. 28 U.S.C. §1331

what can I do if I found out that I made serious mistake with my complaints ?
you can file an amend, see template here

Will USCIS punish me for filing WOM against them ?
Generally this should not happen. There is one case in MA, (Plaintiff filed WOM for his wife's delaying marriage-based I-485. During the WOM case pending, USCIS officers visited plaintiff's home without notice, persuaded/threated the applicant to withdraw her application, then ask the court to dismiss the case since it is mooted. Later on the plaintiff fought back and argue that USCIS illegally/improperly denied their aplication, and the Judge ruled favored to plaintiff and ask USCIS to grant I-485). It is much common to file lawsuit in USA if you have good reasons. It will be very serious sequence for them if you punish you just because of the lawsuit. However, if you have any issues your own applications (as mentioned above), then you should think carefully. If any concern, please contact us

What will happen if WOM didn't work out for me ? Will any bad consequence ?
if AUSA file MTD, and the judge grant MTD, then your case will be dismissed. Since most of us file WOM to push FBI to expediate NC. This dismiss means you will be patient to wait FBI to complete your NC, a few more months, or a few more years. In other word, you just throw some money into water without any help to your NC process.

Who should be cautious to file WOM ?
a. I140还没批的
b. NC少于2年的,虽然没有法律规定,可以前的案例都是2年以上,太短了博不到法官的同情心.
c. 不急着想要绿卡的,心想,看你FBI急还是我急,
d.胆小如鼠者,我知道有人I140早就批准了,I485也交了好就,连家里有重病人也不敢用AP回国,总是担心这问题,那问题,AP不就是让你临时代替绿卡的,这还担心,真是越活越没志气,都被这绿卡害了没人生了,太不值了.这种人肯定没勇气和FBI,
USCIS打官司.
e.自己怕麻烦又不想花钱请律师,这世上就没这好事
f. 你的I-485依据的批准可能有潜在问题,
比如怀尼你婚姻真实性...
g. 以前身份有问题的,比如两身份转换有空档
h. 其他问题,比如被拘捕过,就I-485问题撒谎,是党员不报等等,