Unexpected Retrogression of July 2007 Priority Dates - What Now?
Posted Jul 3, 2007
©MurthyDotCom
There was a flurry of activity on July 2, 2007 - the very first day that the USCIS was supposed to accept I-485 filings from all employment-based applicants. The U.S. Department of State (DOS) came out with the following statement that morning: "Effective Monday, July 2, 2007, there will be no further authorizations in response to requests for employment-based preference cases." See the revised Visa Bulletin for July 2, 2007 from the DOS on MurthyDotCom at http://www.murthy.com/visadate.html.
Shortly after that, the USCIS released an update in the afternoon that they will reject all I-485s filed by those whose priority dates are not current under the revised July 2007 Visa Bulletin. See USCIS Update at: http://www.uscis.gov/files/pressrelease/VisaBulletin2Jul07.pdf.
This unprecedented action of the government is shocking and disturbing to all of us. It has left many in a state of disbelief, frustration, confusion, and anger. We at the Murthy Law Firm want to help channel all the energy in a positive manner, so that we can work together to fight for what we believe is the right thing to do and to draw the attention of the government to thinking twice before they change the rules in the middle of the game.
GENERAL FAQs:
Should I File My I-485 or Not?
Since the visa dates have become unavailable, effective July 2, 2007, you will have to decide if you prefer not to file your I-485 Adjustment of Status Application, since the USCIS will reject it. The other option is to go ahead and file your case with the USCIS, with the expectation that the I-485 Adjustment of Status Application will be rejected and that, after the case is rejected, you will later submit that rejection as evidence to show harm in a lawsuit. It is useful to maintain documentation, like delivery to the USCIS during July 2007 and the returned package from USCIS, as evidence of the filing.
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Will I Have Difficulty in Filing H1B if I am in the Lawsuit?
There is no connection between filing the H1B extensions and submitting one’s name in the class action lawsuit. As mentioned above, a person is eligible to obtain all legal benefits, including H1B extensions, if s/he is eligible based on education and the job, etc. By filing as a class member, one would hope that it will provide additional benefits in terms of compelling the USCIS to accept the I-485s and issue receipt notices, as well as EADs and APs, if these cases were properly filed and the people were otherwise eligible to file.
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What are the Ramifications of Filing when Visa Numbers are Not Available?
Traditionally and generally, there have been no negative legal ramifications from filing when visa numbers are not available, except as outlined here. A person is allowed to file the I-485 again later, when the priority dates become current again. The USCIS is supposed to reject the filing if it is not filed when there is no visa number availability.
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Should I Join the Class Action Lawsuit?
The American Immigration Law Foundation (AILF) has already been authorized to file a lawsuit in federal district court against the U.S. Citizenship and Immigration Services (USCIS) over its rejection of otherwise properly filed adjustment-of-status applications for the alleged reason that a visa number was not available, even though the Visa Bulletin from the Department of State (DOS) provided that a visa was available during July 2007. The lawsuit also would likely sue the DOS for issuing a second Visa Bulletin, voiding the regular monthly Visa Bulletin, traditionally issued once a month; thereby violating its long-standing policy and the expectations of thousands of people, without any advance notification to the general public or issuing any notification under the Administrative Procedures Act (APA).
NOTE : Please DO NOT contact the American Immigration Law Foundation (AILF) directly at this point. AILF needs the time to arrange for this lawsuit and we all need to let them have their time and spend their energy organizing it. We know that you are all anxious – but we appreciate your patience. We will do all we can to guide you through this process.
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If I am a Plaintiff, Can I File My I-485 When it Becomes Current for Me Again?
Yes, one is allowed to file the I-485 again when the priority date becomes current in the future; if, before that time, the court has not compelled the USCIS to accept the I-485 filing and issue the EAD, AP, and other incidental benefits.
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Why are You Working with AILF? Can I Sue Independently?
Attorney Sheela Murthy is a member of the Board of Trustees of the American Immigration Law Foundation (AILF) and the Murthy Law Firm is a long-time financial supporter of AILF's efforts to litigate and educate the public on the benefits of immigrants to the
In order to sue, a person needs to show that s/he was harmed by the actions of the government. This likely will require that one file the I-485 so that it reaches the USCIS during July 2007. Then s/he must show that the USCIS rejected that package improperly. One may also need to show the harm suffered - financial and otherwise; for example, through one's (and any family members') inability to work with the EAD, the inability to change jobs as afforded under AC21, etc.
Any foreign national who is otherwise eligible for adjustment of status, and whose adjustment-of-status application has been or will be returned or rejected improperly solely on the basis of a revised Visa Bulletin that may not be legally valid due to the revised Visa Bulletin showing visa number unavailability, may be eligible to be a plaintiff in this lawsuit.
FAQs FROM AILF
If you are considering being a participant in this lawsuit, you may find the following frequently asked questions and answers from AILF helpful.
Q: What is AILF?
A: The American Immigration Law Foundation (AILF) is a non-profit organization dedicated to protecting the rights of immigrants and refugees, and to securing fair and just application and administration of the
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Q: What is this lawsuit about?
A: This lawsuit will be filed by plaintiffs who have been harmed because USCIS rejected or returned, or is expected to reject or return, a properly submitted adjustment-of-status application for the alleged reason that no visa was immediately available, even though the DOS Visa Bulletin states that a visa was available at that time. Or, if there was a revised Bulletin issued showing unavailability, then, arguably, that revised Bulletin is not valid, since it violates long-standing policy and practice of the government.
To be eligible for adjustment to lawful permanent resident status, a foreign national must show that a visa number is “immediately available.” USCIS regulations state that the DOS Visa Bulletin is used to determine whether a visa number is immediately available. This Bulletin is published once a month and lists the visa availability dates for all categories of immigrants for the coming month. Thus, for example, the July 2007 bulletin, listing visa availability dates for the entire month of July, was published in mid-June 2007.
AILF has learned that USCIS has refused to allow certain adjustment-of-status applications to be filed in June 2007, even though the DOS Visa Bulletin states that visa numbers are available for the immigrant category at that time. USCIS rejected these applications because DOS informed it in an internal communication that no visa numbers remained for that category of immigrants. Until now, this had happened only in the employment-based “other worker” category in June 2007. This happened in a number of other types of employment-based immigrant categories beginning in July 2007.
We believe USCIS violated the law when it failed to apply the visa availability dates listed in the July Visa Bulletin, as required by a federal regulation, and instead rejected properly-filed, adjustment applications. Through this lawsuit, we will challenge the rejection of adjustment-of-status applications on this basis. We will ask the court to order USCIS to accept the rejected adjustment applications and treat them as being filed as of the date they originally would have been filed, had USCIS not rejected them. Also, AILF will likely argue that the revised Visa Bulletin violates the long-standing policy of the DOS and was issued without any notification to the general public, as required by the Administrative Procedures Act or APA.
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Q: What is a “plaintiff” and how do I know if I am eligible to be a “plaintiff” in this lawsuit?
A: A plaintiff is a person who files a lawsuit against someone else. We are still determining the categories of plaintiffs, but an eligible plaintiff for this lawsuit may include:
A foreign national who is the beneficiary of an employment-based petition who:
- submitted an adjustment-of-status application in any employment-based category, other than “other worker,” for receipt by USCIS in July 2007; and
- is otherwise eligible for adjustment of status; and
- did not receive a receipt notice, cancelled check, or notice of approval of the adjustment application.
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Q: Why should I be a plaintiff in this lawsuit?
A: If the lawsuit is successful, USCIS should accept your adjustment application and treat it as if it had been filed as of the date that you originally tried to file it. Because your adjustment application will then be considered to be pending before the USCIS, you may be eligible for interim benefits, including an employment authorization document, advance parole, and other potential benefits, like I-485 portability benefits, when eligible.
What the lawsuit will not do is make a visa number immediately available to you if none is available. If the visa numbers have, in fact, been used for the current fiscal year, the court does not have the authority under the law to make a new number available to you. However, if the court orders that USCIS accept your adjustment application as of the date that you originally tried to file it, you will be at an earlier place in line when visa numbers become available again when the next fiscal year begins on October 1, 2007. Additionally, as mentioned, you may be eligible for interim benefits like the EAD, AP and AOS portability, etc, while you are waiting.
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Q: What is likely to happen because of the suit?
A: Lawsuits are uncertain by nature. We cannot predict the exact outcome. However, other efforts to resolve these problems with USCIS have not succeeded. For this reason, we believe that a lawsuit is the only remaining possible way to resolve these problems.
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Q: Will being a plaintiff in this lawsuit hurt my chances for permanent residence?
A: If an individual is otherwise legally entitled to have an application granted, the government cannot lawfully deny that application on the basis that s/he is participating or participated in a lawsuit. If we believed the government was taking such action, we would complain to the lawyers representing the government and to the judge handling the case. In our experience, this retaliation has not happened.
Please be aware, though, that USCIS is likely to examine plaintiffs’ adjustment-of-status applications more closely than it otherwise might. It may ask the plaintiffs questions and ask for additional information about their adjustment applications or immigration status. See the following Q/A regarding “discovery.”
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Q: How much time must plaintiffs spend on this lawsuit?
A: Plaintiffs will have to provide us with the information and documentation we need in order to prepare the lawsuit. AILF will do most of the work in the lawsuit on paper. Depending on how the case proceeds, the government and its attorneys may want to ask the plaintiffs some questions regarding their cases, either through written questions and answers or in person. This is called “discovery.” One type of discovery is a “deposition,” which is an interview where parties are asked questions about their cases.
Depositions are possible but not common in this type of case. In the event that discovery and/or depositions were required, an AILF attorney or an attorney working with us would assist plaintiffs to comply with any discovery requests, and would appear with plaintiffs at any deposition at no charge (see below). At a later stage, a plaintiff may be required to be present at a hearing or a trial and possibly be asked to testify about her/his particular case, but this is quite rare.
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Q: Will it cost me anything to be a plaintiff in this lawsuit?
A: AILF and any co-counsel will not charge any attorney’s fees for representing individuals in this lawsuit. AILF and any co-counsel also will pay the costs and expenses associated with the lawsuit, such as filing fees*, copying, long distance calls, travel expenses for AILF attorneys and staff, depositions, transcripts, etc. In the unlikely event that an individual should be required to be present at a deposition, hearing or a trial, we may ask that s/he pay his or her own travel and lodging expenses, if any. Those expenses would be reimbursed if the lawsuit is successful and we recover costs. ( * this is about the lawsuit only).
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Q: Will anyone know that I am a plaintiff in this lawsuit?
A: Lawsuits are public information and are available as public court documents. Many courts now have lawsuits and other documents available electronically, accessible via the internet. Also,
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