July 2, 2007 – UNDERSTANDING THE CURRENT VISA BULLETIN CRISIS
Summary
The State Department and USCIS, as recently as June 13, 2007, announced that all Employment-Based immigrants in three main categories (EB-1, EB-2, and EB-3) could apply for Adjustment of Status to Lawful Permanent Resident Status beginning July 2007. The State Department explained that, “This has been done in an effort to generate increased demand by Citizenship and Immigration Services (CIS) for adjustment of status cases.” Now, July 2, 2007, on the day that the State Department and USCIS agreed that all categories could file, each announced that all such cases would be rejected. In that notice, the State Department made this feeble explanation, “The sudden backlog reduction efforts by Citizenship and Immigration Services Offices during the past month have resulted in the use of almost 60,000 Employment numbers. As a result of this unexpected action it has been necessary to make immediate adjustments to several previously announced cut-off dates.” This unprecedented and illegal “bait and switch” tactic has thrown the lives of hardworking law-abiding immigrants into disarray and disappointment, and threatens to saddle them with dramatically increased filing fees, insufferable delay, loss of work authorization, and possible forced departure.
Facts
On May 11, 2007, the State Department issued the June 2007 Visa Bulletin, establishing which priority dates would be allowed to file for adjustment of status as of June 1, 2007. The dates reflected current priority dates for the Employment-Based (EB) First Preference (EB-1) for all countries, meaning that any applicant in the EB-1 category was welcome to apply for an EB green card through the adjustment of status (I-485) process. In addition, EB-2 cases were also current, and EB-3 cases with priority dates of June 1, 2005 or earlier could apply for adjustment of status in the month of June. Due to per-country limitations, those born in China and India were subject to the following dates (China: EB-1 Current; EB-2 January 1, 2006; EB-3 June 1, 2003; India: EB-1 Current; EB-2 April 1, 2004; EB-3 June 1, 2003). The State Department, in explaining the visa availability, stated in the Visa Bulletin that, “The current level of demand in many of the Employment-Based categories has been much lower than anticipated. As a result, the June cut-off dates have been advanced significantly in an effort to maximize number use under the annual numeric limits. At this time it appears likely that there will be additional advances during the coming months. All readers should be aware that such cut-off date movements should allow for action to be finalized on a significant number of Citizenship and Immigration Services adjustment of status cases. Once that level of demand begins to exceed the supply of available numbers it will be necessary to make “adjustments” to the cut-off dates. At this time it is not possible to estimate when this is likely to occur, but it is expected.”
On June 13, 2007, the State Department issued the July 2007 Visa Bulletin, establishing which priority dates would be allowed to file for adjustment of status as of June 1, 2007. The dates reflected current priority dates for EB-1, EB-2 and EB-3. Under long standing rules, this would mean that during the month of July, those EB immigrants in categories 1, 2 and 3 could all file for adjustment of status. The State Department, in explaining the visa availability, stated in the Visa Bulletin that, “All Employment Preference categories except for Third “Other Workers” have been made “Current” for July. This has been done in an effort to generate increased demand by Citizenship and Immigration Services (CIS) for adjustment of status cases, and to maximize number use under the annual numerical limit. However, all readers should be alert to the possibility that not all Employment preferences will remain Current for the remainder of the fiscal year. Should the rate of demand for numbers be very heavy in the coming months, it could become necessary to retrogress some cut-off dates for September, most likely for China-mainland born and India, but also possible for Mexico and Philippines. Severe cut-off date retrogressions are likely to occur early in FY-2008.”
Based on the announcements, employers, employees and their advocates began preparing I-485 adjustment of status applications for those categories of applicants who were current and who would be current beginning in July. These applications were prepared at great expense, and great effort. The applications were prepared based on the settled expectation that if dates were to retrogress, advance notice would be given to the public.
On June 29, 2007, a Friday, rumors began to circulate that the State Department and USCIS would possibly revise the priority dates sometime during the month of July. USCIS had already taken unprecedented action in June to reject “Other Worker” applications, when they announced after the fact that numbers had been exhausted June 5, 2007. The rumor fueled increased urgency to file cases as early in July as possible.
On July 2, 2007, the State Department issued a notice titled “Update on July Visa Availability” which stated, “The sudden backlog reduction efforts by Citizenship and Immigration Services Offices during the past month have resulted in the use of almost 60,000 Employment numbers. As a result of this unexpected action it has been necessary to make immediate adjustments to several previously announced cut-off dates. All Citizenship and Immigration Services Offices have been notified of the following: Effective Monday, July 2, 2007 there will be no further authorization in response to requests for Employment-based preference cases. All numbers available to these categories under the FY-2007 annual numerical limitation have been made available. Employment preference numbers will once again be available to these chargeability areas beginning October 1, 2007, under the FY-2008 annual numerical limitation.” Following this announcement by a few hours was the USCIS announcement, which stated, “The Department of State has revised its July Visa Bulletin to reflect that all available employment-based immigrant visas have been allocated for fiscal year 2007. As a result, beginning today, U.S. Citizenship and Immigration Services (USCIS) is rejecting applications to adjust status (Form I-485) filed by aliens whose priority dates are not current under the revised July Visa Bulletin. U.S. immigration law limits the number of employment-based immigrant visas that may be issued each fiscal year.”
Analysis and FAQ
How does this affect EB immigrants? This unprecedented illegal action by the State Department and USCIS will have direct consequences on employers, employees and advocates.
Has such an event ever happened before? To our knowledge, visa priority dates have never been changed mid-month without prior notice.
Can USCIS and State Department legally do this? The actions of the State Department and the USCIS are being examined by advocacy groups to determine whether the sudden actions of the government without proper notice, are legally authorized. The American Immigration Lawyers Association believes that the rejection policy is contrary to the regulation at 8 CFR Sec. 245.1(g)(1) and has urged USCIS to reverse the policy.
Does it make sense to file now? If an application has been filed already, it is expected that USCIS will reject the filing and return it to the sender. If an application has not been filed, it appears that it will also be rejected. Some question whether it makes any sense to file an adjustment of status application now that the announcement has been made to reject application. Considering that the government actions are unlawful, and considering the Visa Bulletin still shows “current” for all categories despite the “update”, it may be advisable to file adjustment of status applications, and when rejected, seek to litigate the rejection.
What happens to the rejected applications? If the application has been rejected, the entire packet should be returned to the sender. The application can be resubmitted at a later time when the Visa Bulletin shows a current priority date for that particular EB classification.
Can the I-140 Immigrant Petition be processed even though the I-485 Adjustment Application has been rejected? Yes. The filing of an immigrant petition (Form I-140) is not prohibited by the unavailability of visa numbers, and the immigrant petition can also be approved while visa dates are unavailable.
What happens to the medical exams? Medical exam results are valid for one year. If the dates become current within the next one year, the medical exams can be used to file for adjustment of status.
When might Visa Priority Dates again be current? Because visa priority dates are determined based on the number of immigrant visas available in a particular Fiscal Year (FY), it is possible that dates may again be available beginning October 1, 2007. That is because October 1, 2007 is the first day of the Fiscal Year 2008 (FY-2008). Dates for October 1, 2007 should be posted by the U.S. State Department around the middle of September, 2007.
Should I just wait? What should I do? Of course, the answer must be determined after receiving the advice of competent immigration counsel. Every case is different. Some EB immigrants will be inconvenienced by this crisis, and other EB immigrants will lose eligibility for immigration benefits, lose work authorization, or face the prospect of being forced to leave the country. Some EB immigrants may be forced to seek remedies through litigation.
Will I be subject to the increased fees July 30, 2007? While there has been no explanation of the effect of the planned fee increases beginning July 30, 2007 on rejected applications, it appears that increased filing fees will apply to resubmissions. This is a significant negative effect of the USCIS rejection policy. Current I-485 fees for an adult are $325 plus $70 biometrics fee. The new fee, which goes into effect on July 30, 2007, is $1,010.
What is a priority date? A priority date is a type of “place in line” for many types of “preference” immigrants. For employment-based cases, the priority date is established either the day the labor certification application (whether standard, RIR or PERM process) is filed. If the category (like EB-1) does not require a labor certification, then the priority date is the date the I-140 immigrant petition is filed. Once the priority date is established, it is consulted against the dates that are currently being processed as published by the State Department in its Visa Bulletin.