by Douglas Halpert, Esq. with Editorial Contributions by Greg Adams, Esq.
As we reported in our July 2, 2007 News item, "Latest Information on July Visa Bulletin," on July 2, 2007 the U.S. Department of State ("DOS") and U.S. Citizenship and Immigration Services ("CIS") took unprecedented action. First, DOS announced that it was withdrawing the Visa Bulletin for July 2007. Second, on the heels of DOS’ announcement, CIS posted an Update to its website stating that CIS would not accept employment-based adjustment of status applications received on Monday, July 2, 2007 or later. This article provides a fuller explanation of these developments and what they mean.
How Does the Immigrant Quota System Work in Terms to Permit the Orderly Filing of Adjustment of Status Applications?
Under long-established rules, DOS regulates the flow of I-485 adjustment of status to permanent residence applications filed by foreign nationals present in the United States, based on an approved, pending, or concurrently filed I-140 Immigrant Petition in the employment-based (EB) categories. DOS accomplishes this by issuing a monthly Visa Bulletin which it posts on its website at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1770.html. DOS typically releases each monthly Visa Bulletin in the middle of the month preceding the month in which the Visa Bulletin is effective. The Visa Bulletin either lists a particular EB Immigrant category as
"C" for "current" (meaning all applicants in this category can file an I-485 application in that calendar month),
"U" for "unavailable" (no one may file and I-485 application in that month),
or provides a specific "cut off" date, meaning that only applicants with a valid "priority date" may apply in the calendar month.
There are separate cut-off dates for certain countries that are more backlogged that the general worldwide quotas (such as India, China, Mexico, and the Philippines).
A priority date is established when the first step in the permanent resident application process takes place, typically the filing of a labor certification application (sometimes called a PERM application or an ETA 9089 application) or the filing of an I-140 immigrant petition. Therefore, the DOS Visa Bulletins act as the gas pedal and the brake that allows DOS to regulate how many I-485 applications may be filed with CIS at any one time. The idea is for CIS to approve just enough I-485 applications each year to exhaust the permanent resident (or "green card") quotas available for that year, but not to permit a surplus of I-485 adjustment applications to be filed. Essentially, the Visa Bulletin, and the cut-off dates that DOS establishes each month, attempts to synchronize (a) the number of I-485 applications filed with CIS with (b) the number permanent resident visas or green cards that are available under the law.
By way of example, if DOS lists on its July 2007 Visa Bulletin a June 1, 2005 cut-off date for the employment-based second category (EB2) for India, then only natives of India whose employer filed a labor certification application (or an immigrant petition in some cases) before June 1, 2005 may file an I-485 adjustment of status application in July 2007 (assuming of course that the labor certification application has been approved).
So What Happened Just Now?
Entering June 2007, there were sizeable backlogs in all the employment-based third (EB3) categories ("chargeabilities" as DOS likes to call them) and also in the EB2 categories for India and China. The DOS Visa Bulletin for June mentioned possible further advancements of the cut-off dates in the coming months but foreshadowed nothing particularly dramatic.
On June 13, 2007, DOS released the July 2007 Visa Bulletin and indicated all EB2 and EB3 categories (except EB3 other workers) would become "current" effective July 2, 2007 . This dramatic announcement meant that a very large number of beneficiaries of approved or pending immigrant petitions and of approved labor certifications would be eligible to apply for adjustment of status starting on July 2, 2007 and continuing at least until July 31, 2007.
As a result of the dramatic changes to the July Visa Bulletin, U.S. employers, foreign national employees, and immigration attorneys nationwide went into overdrive to prepare I-485 adjustment of status for filing in July.
So Tell Me Again What Happened Yesterday
On July 2, 2007, three dramatic events transpired. First, DOS announced that "Effective Monday, July 2, 2007 there will be no further authorizations for Employment-based preference cases." The DOS notice also stated that "Employment preference numbers will once again be available to these chargeability areas beginning October 1, 2007, under the FY-2008 annual numerical limitation." There is no re-posting of the July 2007 Visa Bulletin. The July 2007 Visa Bulletin as released on June 13, 2007 is still on the DOS website showing the relevant cut-offs as "Current."
Second, CIS followed the DOS announcement with its own statement that:
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."
Third, the American Immigration Lawyers Association (AILA) publicly condemned the U.S. government's "bait and switch" tactics and announced that AILA and the American Immigration Law Foundation (AILF)’s Legal Action Center are planning a law suit on behalf of foreign nationals who have been negatively impacted by DOS and CIS’s unprecedented actions.
Where Does This Leave My Planned Immigrant Petition and Permanent Residence Application?
These events leave many wondering whether to file I-485 adjustment of status applications in July and whether to go to the expense of obtaining medical examination results to include with their I-485 applications. For most, this will be a collaborative decision to be undertaken both by the sponsoring employer and the foreign national employee.
At this early stage (24 hours after these events transpired), here is what is clear:
- I-485 applications that CIS received on or before June 29, 2007 are not impacted by the changes to the July Visa Bulletin;
- I-140 immigrant petitions may continue to be filed with CIS regardless of whether the priority date is current or not current.
- CIS will reject any employment-based I-485 application CIS received beginning yesterday, July 2, 2007.
Here is what is not clear: - How even categories such as EB1 Multinational Manager or Executive and Extraordinary Ability can be backlogged (designated as "unavailable" by DOS) when this category has historically been current; and
- What the to-be-revised Visa Bulletin will say about when the EB categories will be open again.
How Could Things Change so Drastically and Without Any Advance Notice?
Only those in the U.S. government know the true story and so far they have not spoken publicly. One theory is that DOS has been criticized in recent years because it too tightly controlled the cut-off date movement thus precluding enough applications to be filed with CIS to use up the valuable, annual quota slots. The slots (called "immigrant visa numbers") that were not used in the assigned federal year effectively were wasted or thrown away. The theorists believe that this time around DOS did not want to take such an overly conservative approach in setting cut-off dates in part because of the criticism it received in the past. With the 2007 federal year coming to and end on September 30th, and having experienced low demand thus far from CIS for immigrant visa numbers to be used for CIS-approved I-485 adjustment applications, the theory goes that DOS did not want to be seen as the cause of visas going unused and decided to open the floodgates. We do not know whether this theory is valid, but we do know that the combined DOS and CIS July 2nd developments are patently unfair (and perhaps illegal) to all involved.
Can I Still File An I-485 Application in July 2007 and What Consequences Will Transpire?
Yes, you can still file an I-485 application though at this time CIS will reject it. It is probable (though not guaranteed) that organizations such as the American Immigration Lawyers Association and/or the American Immigration Law Foundation will file a lawsuit on behalf of applicants whose I-485 applications CIS rejects. If a lawsuit is filed a court might decide to require CIS to accept I-485 applications that were rejected by CIS in July. Therefore, some applicants may choose to apply during in July in an effort to fall within the class of applicants who may benefit if a court were to order CIS to accept I-485 applications filed in July and rejected by CIS.
Whether this approach is a good one is a difficult decision because no one knows how events will unfold in the coming weeks. Where a company is paying the legal and filing fees for the I-485 adjustment applicant, the company must make a judgment about whether such expenditures are warranted given the uncertainty surrounding potential litigation. Rejected applications could take a long time for CIS to return. For individual in "intent sensitive" status such as F-1 or J-1, filing an I-485 application could result in an inability to obtain a new F-1 or J-1 visa at a U.S. Consulate while abroad or to re-enter the U.S. if one already holds an unexpired temporary visa.
Will This Impact My Ability to Extend My H-1B Status Further?
No. Your employer can still file an H-1B extension request. If you have not yet reached the six-year H-1B maximum or limitation on H-1B status, the H-1B extension request may be filed as usual. If you are beyond the sixth year of H-1B status and your priority date is no longer current, and if you have an Immigrant Petition approved on your behalf, an employer may file an H-1B extension petition seeking a three-year H-1B approval. If you are the subject of a pending labor certification application filed at least one year prior to your six-year H-1B limitation date, the employer may file a one-year extension petition. H-1B extensions are usually permitted to be filed no earlier than six months before the H-1B status expiration date.
Are Media Reports That I Have Lost My Chance to Apply For a Green Card True?
No, this is not true. Keep in mind that the media often are not aware of the nuances of immigration law, nor are people trading information in Internet chat rooms, so be cautious about what you hear. As long as your qualifying employment remains stable, the July 2nd developments mean that there will be a delay in filing your I-485 adjustment application.
What Is Dinsmore & Shohl Going to Do Regarding My Application?
Where an employer has engaged our law firm to handle a permanent residence case, we will ask the employer to decide whether we should continue preparation and filing efforts on your behalf or to file just an I-140 immigrant petition under preparation and to suspend efforts to file the I-485 adjustment application. Where an individual has directly retained our law firm, we will consult with the individual applicant to determine what the individual would like to do. We will post further updates once they are available.