Should I File my I-485 Application Based on the Dates in the Original October 2015 Visa Bulletin?

As previously indicated, the Murthy Law Firm is generally recommending against filing adjustment-of-status applications (form I-485s) based on the cutoff dates listed in the original version of the October 2015 Visa Bulletin, which was released on September 9, 2015. This recommendation is based on a number of factors, including:

• It may take weeks, or even months, for the application to be rejected by the USCIS and returned to the applicant. By then, the situation may have been resolved through executive action, lawsuit, or the natural movement of priority dates to a point where the applicant’s case truly is current. In that situation, does one wait and hope the application is returned in time to refile? More likely, s/he would be forced to rush to create a new I-485 application package, incurring even more expense.

• There seems to be no immediate benefit to filing based on the cutoff dates listed in the September 9th version of the October 2015 Visa Bulletin. The Murthy Law Firm is aware that there have been lawsuits filed in an effort to force the USCIS to revert to the original visa bulletin dates. Even if these court challenges are successful, however, it seems unlikely that only those who file and have their cases rejected or denied by the USCIS would benefit. A more probable outcome would be that, if the courts agree that the USCIS must honor the more-favorable version of the visa bulletin, then all eligible candidates would be permitted to file – not only those with rejected / denied applications. There is no way to guarantee this, of course. But, the risk of not filing appears to be relatively small.

• There are also financial costs associated with preparing and filing an I-485. Although the application is likely to be rejected by the U.S. Citizenship and Immigration Services (USCIS), which typically would mean that the filing fees would be returned, if the form is mistakenly accepted and then denied as untimely filed, the filing fees would not be returned. In addition, the government will not reimburse the applicant for all of the other related expenses. If a case is rejected and needs to be prepared again, the applicant may need to pay those related expenses a second time.

Isn’t This the Same Situation as the Summer of 2007?

Years ago, when a revised version of the July 2007 Visa Bulletin was released, the Murthy Law Firm strongly encouraged its clients and the immigrant community to submit I-485 applications based on the original, more favorable version of the visa bulletin. This recommendation was part of a coordinated effort to put pressure on the USCIS. However, there are some key differences between then and now. Based on our legal analysis, the facts surrounding the changes to the October 2015 Visa Bulletin generally do not support the argument in favor of filing based on the originally released September 9th version of the visa bulletin.

Three-Step Approach

Rather than encouraging foreign nationals to submit I-485 applications that are expected to be rejected by the USCIS, the Murthy Law Firm is recommending a three-step approach: First, be prepared – those who would have been eligible to apply under the original version of the October visa bulletin should ensure their respective cases are ready for filing as soon as they become clearly eligible. Second, pay careful attention to the visa bulletin and related news. If the original version of the October 2015 Visa Bulletin is re-implemented, or if the priority dates simply move forward in the coming months, it is important to not miss the window of opportunity to file. Third, keep advocating! The immigrant community should continue to exert pressure on the government to correct this injustice.

Discuss Special Circumstances with Attorney

Please note that this general recommendation against filing may not apply in all cases. For instance, if the principal applicant has a child who is likely to age out because of the revisions to the visa bulletin, the individual should at least discuss the possibility of filing in October with an experienced attorney.

Conclusion

The Murthy Law Firm will continue to closely follow this developing story and to advocate in favor of the immigrant community. To ensure you are informed of any new details that emerge, please subscribe to the free MurthyBulletin and check MurthyDotCom for the latest updates.

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