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U.S. Immigration

 
3 July 2007
 

Visa Bulletin Revised:

The Case of the Vanishing Visas


In mid June, as is their common practice every middle of the month, the Department of State published its Visa Bulletin for the coming month -- July, 2007.

Per their bulletin for the month of July this year, all employment-based cases for all countries, except the “other worker” category, would be open for filing. This meant that anyone other than an unskilled worker with an approved labor certification -- regardless of filing date -- could file their adjustment of status application during the month of July. This also meant that all those who were eligible to file an I-140 immigrant petition without having to undergo labor certification, could file their I-140 and I-485s concurrently – at least during the month of July.

This was cause for much celebration for many people of all nationalities. For health care workers reeling from the delays caused by the retrogression of visa numbers effective November 1, 2006, this was certainly good news.


It meant that while they had been unable to file their I-485s because their I-140s were filed on or after November 1, 2006, all of the waiting and unease caused by recent unlawful status (or the looming end to currently lawful status) would end with the filing of their I-485s in July.

And if they did not have an established priority date, but could bypass labor certification, then the immigrant petition and green card application could be filed together in July.

And everyone else -- essentially anyone with an established priority date (either on the basis of an approved labor certification application or a pending or approved I-140 petition) so long as they were not an “other worker” -- could file their green card application in July.
Statue of Liberty
 

 


This great news of what essentially amounted to an “open season” for almost all the employment-based visa categories was especially celebrated because of the backlogs in visa availability that for many months had prevented I-485 filings for many, notwithstanding approved I-140s. It was not that long ago, after all, that visa numbers for the EB-3 category, for example, went as far back as 2002. The unexpected news of the July numbers, published in June, was also happily received by all after the announcement of the significant hike in immigration fees, effective July 30, 2007. So definitely, there was much to celebrate, and much to be done before the end of July.

Or so we thought.

On July 2, 2007 -- the first day that we would have been able to file I-485s (July 1 being a Sunday) -- the Department of State revised its bulletin and essentially CLOSED all employment-based visa categories not just for the month of July, but also August, and September. No employment-based adjustments can be filed as of July 2 and effective until the end of September. For those outside the country, expecting to be interviewed (or even already interviewed) at U.S. embassies abroad, if your employment-based immigrant visa was not issued by the end of June, then you cannot expect to receive it until at least October 1. With a simple change of a web page in the midmorning of July 2, 2007 – just like that -- no employment-based visas will be issued before the start of the new fiscal year, which begins October 1, 2007. Yes, it happened just like that.

A few hours later, in the afternoon of this fateful July 2, 2007, following the official State Department revision of their July numbers, the USCIS announced that all employment-based I-485s received even on July 2 would be rejected due to the revised numbers as announced by the State Department earlier in the day. Thus, even if you sent in your I-485 last week (say, Friday) in anticipation of the numbers being available to you on Monday, July 2 (since the government cannot receive mail on Sunday which would have been the first day of “open season”) – even if you were acting in reliance of information they provided to you which was still good as of the time you submitted your application (and arguably, even as of the time they received your application assuming they received your application on Tuesday morning before the mid-day revision by the DOS), then they STILL would reject your application and return it to you without crediting you for today’s filing.

It’s not fair, is it? It’s just not fair. And it’s not sitting well with me. I hope it’s not sitting well with you either. So what do we do now?

The American Immigration Lawyers Association is at this time, preparing to litigate this matter. On whether to file or not to file at this time – the decision is up to you. If you file, you will most likely be rejected. Should you still file your employment-based adjustment? That decision is up to you. There is legal basis for believing that filing an application in July may actually help you and that should you opt not to file, and should there be any court-ordered remedies pursuant to a successful lawsuit filed against the government , that you may lose any legal claim to any benefits derived from a successful class action suit. Thus, by never entering the class to begin with because you did not file and were not rejected, then you may in effect lose your chance to benefit if this is successfully litigated.

Of course, you have every right to wait it out. Wait for your priority date to be current. If you are here in lawful status, and you are not in any danger of losing your ability to apply for a green card in the future, then you may decide to wait. After all, waiting may mean that you will not be subject to the filing fees and filing costs that you would incur now – rather than later – for the “benefit” of being included in a class of people that may or may not ultimately benefit from this litigation, whether or not it is successful. So in the end, it is all up to you.

I am not trying to counsel you to join this “class”. This is not what this article is about. It is all about providing you with information. In these days of seemingly ever-diminishing options, it is important to preserve your rights when something can be done to preserve them. We never know. Perhaps with the looming prospect of a suit, the USCIS and the DOS will determine that it is better policy to accept the July filings based on the bulletin before it was revised. We may actually be surprised in the coming days and find that the State Department has scrapped its revised July bulletin in favor of the original one, and then adjust their figures accordingly for August and the coming months. If so, then maybe filing at this time will mean that your case won’t be rejected after all. Maybe, just maybe.

File in July and you may find your application rejected. But you may also find that such rejection has placed you in a far better position that someone who opted out. If you decide to wait until your priority date becomes current, then that is your prerogative too. At the very least, you know that based on the information on the State Dept. website as of today, July 2, 2007 – unless they revise the revised bulletin -- the earliest you may be able to file your I-485 will be no earlier than October 1, 2007.

So much happened today. So much can still happen tomorrow. Everything that I write about today happened today. When was the last time the charts pretty much declared an open season for almost all the employment-based categories? In all my years of practice, and there have been many, July’s figures were unprecedented. Who would have thought it was just another one of those things that disappear with a simple change of a website entry?

People you don’t know, and will most likely never meet, made decisions that will affect you in a very significant way. Plan your next move carefully, and execute your plan timely, efficiently and effectively. Your options may have been drastically diminished, but do not make the mistake of not making the most of what you have left. In this life, when there is so much that is not within our control, sometimes that is the best that we can do for ourselves.



VANESSA S. BARCELONA
is a partner in the law offices of Barcelona & Pilarski, P.A. She is a licensed attorney practicing primarily in the area of U.S. immigration law. She is a graduate of the University of Florida, where she obtained her J.D. and B.A. degrees. She is a member of the Florida Bar Assn., The American Bar Assn., and the American Immigration Lawyers Assn.† She may be contacted at Tel (239) 590-9864 
 
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