Visa Bulletin Movement and Mandamus Lawsuits
Posted Jun 27, 2008
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The U.S. Department of State (DOS) Visa Bulletin for July 2008 carried the announcement that all employment-based, third preference (EB3) visa numbers will be used by the end of June 2008. There are several causes of this development, including joint efforts by DOS and the USCIS to utilize all available visa numbers by the end of fiscal year (FY) 2008. One important change that appears to be contributing to the usage of visa numbers is the February 2008 Michael Aytes memorandum allowing for approval of Application for Adjustment of Status (I-485) cases awaiting clearance through the Federal Bureau of Investigation (FBI)'s National Name Check Program (NNCP). [The most recent DOS Visa Bulletin chart is always available on MurthyDotCom.]
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I-485 Approvals after Filing Mandamus Lawsuits
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The memorandum, described in our March 7, 2008 article, New Developments in Mandamus Lawsuits, has allowed the USCIS to adjudicate many delayed I-485 cases. Due to case volume and resources, however, not all cases that fit within the terms of the memo are being approved without proactive steps, such as the filing of the writ of mandamus. We at the Murthy Law Firm have found that the filing of a writ of mandamus can be a very successful way to prompt a faster, favorable decision in a long-delayed case.
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Regular MurthyDotCom and MurthyBulletin readers may recall a joint USCIS and FBI press release (PDF 27.8KB), from April 2, 2008, stating that both government agencies had set June 2009 as their target for eliminating 98 percent of all pending FBI name-check requests for immigration and naturalization cases. The USCIS has not yet made an announcement regarding its progress towards meeting this goal. Clearly, it has made progress, but there continue to be I-485 cases that are suffering delays. These cases potentially could benefit from the writ of mandamus, but only if visa numbers are available so that they are eligible for approval. Thus, our firm continues to have clients who opt to file the writ of mandamus, hoping for approvals during those limited windows of opportunity when visa numbers are available to them, as reflected in the DOS Visa Bulletin.
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Cannot File Mandamus Lawsuit without Current Priority Date
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One unintended consequence when the USCIS adjusted many delayed I-485 cases was the recent volatility of the Visa Bulletin. As explained in our June 13, 2008 article, July 2008 Visa Bulletin: EB3 Unavailable, the USCIS has approved enough EB3 cases to reach its annual limit for all countries. As a result, no EB3 Adjustment of Status applications may be approved until fiscal year FY2009, which begins October 1, 2008. The Murthy Law Firm recently obtained approvals of I-485 cases in the EB3 category after filing writs of mandamus. Some of these cases were approved in June 2008, as these individuals had decided to move forward with the mandamus filings earlier in the year. However, this option will not be available for others in EB3 for the rest of FY2008 until these individuals' priority dates become current.
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Which cases will be eligible for approval at the beginning of FY2009 will not be known until the DOS issues the October 2008 Visa Bulletin. Each Visa Bulletin generally is published after the 10th day of the previous month, so that Visa Bulletin likely can be expected by mid September 2008.
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EB2 Category Still Available
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As the July 2008 Visa Bulletin chart shows at this time, the EB2 category for India and Mainland China has a cutoff date of April 1, 2004 and is current for all other countries. Comments in the Visa Bulletin indicate that this situation is also in flux and subject to change. Thus, for cases in EB2 with available visa numbers (meaning the individual's priority date is current), filing the lawsuit of the writ of mandamus against the government remains a viable option, if the case is delayed excessively due to name-check or other issues.
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Conclusion
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The Murthy Law Firm applauds the USCIS for its efforts to resolve the backlog of I-485 cases created by the FBI name-check process and to eliminate the need to file writs of mandamus. While EB3 category adjustment applicants will have to wait until October 2008 or later for adjudication of their cases, some eligible EB2 category applicants may yet receive their awaited approvals and welcome notices from the USCIS.