In an unprecedented development, the Department of State issued a revised Visa Bulletin today, July 2, announcing that USCIS had used the remaining 60,000 immigrant visa numbers for Fiscal Year 2007 during the month of June.
DOS announced that June’s usage had exhausted all of the available immigrant visa numbers for 2007 three months before the end of the government’s fiscal year, and more importantly, used up those visa numbers before USCIS received a flood of filings today, the first day on which adjustment of status applications could be filed for individuals whose priority date was “current” as of July 1 (a Sunday).
Immediately after the State Department announcement, USCIS issued a press release that the revised Visa Bulletin means that no employment-based preference category has an immediately-available priority date as of today, July 2. Accordingly, the release goes on to state, any application for adjustment of status (Form I-485) received today will be rejected and returned to the applicant, along with all supporting documents and filing fees. Any application received by USCIS before July 1 is not affected and should remain pending until adjudicated.
Information from several sources in the State Department had indicated the usage of numbers was expected to be high at the beginning of the month of July. As a result, we communicated with clients that they needed to return their adjustment applications and supporting documents to us as early in July as possible. No one anticipated that there was any possibility USCIS could have adjudicated 40,000 – 60,000 cases in the month of June. As a result, we took extraordinary measures to file every possible application on July 2, the first business day of the month.
Here are answers to some questions we are hearing:
How Could The Government Do This?
The window of opportunity to file was created by the State Department, which was trying to ensure that USCIS approved enough cases before September 30, 2007 to use up the whole total of 140,000 visas available in the employment-based categories for this year. USCIS, however, did not want to receive thousands of adjustment of status applications that it would not be able to process for years (because, as noted in past updates, the priority dates were likely to retrogress at some point in any event). USCIS may also have been motivated, at least in part, by the fact that cases filed before July 30 would pay much lower filing fees than cases filed on or after July 30.
What Will Happen To The Application I Filed?
We expect that USCIS will return the application, all filing fee checks, and all supporting documents by mail. We also expect that it will take USCIS’s mailroom contractors at least several weeks to prepare those rejections.
Can Immigration Do This To People? Can I Challenge My Case’s Rejection?
USCIS may be able to do this, but we are already considering options for litigation on behalf of individuals whose applications were received by USCIS on July 2 but rejected. We would argue that the regulations do not allow rejection where the Visa Bulletin shows availability for the month until the end of the month; however, the government would argue that the new Visa Bulletin from today makes all of the visa numbers unavailable and replaces the former Visa Bulletin. We may also be able to argue that USCIS approved at least some cases in June that were not current until July, so that visas were, in fact, available at least as of July 2. Clients who are interested in challenging the rejection of their applications for adjustment of status should contact one of the firm’s lawyers immediately. In addition, you and your employer may want to contact your Congressional representatives to explain the impact that this action has had on your life.
If My Application Is Rejected, When May I Re-File?
If the State Department is correct and all available employment-based immigrant visas for Fiscal Year 2007 have been used, the next time any visas will become available is the beginning of the next fiscal year (FY2008). FY2008 begins on October 1, 2007. The State Department will release a Visa Bulletin in mid-September with the priority dates available in October 2007. We will likely not know before September which cases will be able to be filed in October.
Applicants for adjustment of status must have a priority date earlier than the priority date listed as “available” in the Visa Bulletin each month in order for their application to be filed or for a pending application to be approved. To estimate which adjustment of status applications will be able to be filed in October, it is helpful to look a the Visa Bulletin of April 2007 (before the State Department began advancing the priority dates so that USCIS could approve enough cases to use up the available immigrant visa numbers). At that time, some categories were current (including the employment-based first preference for people from all countries and the employment based second preference for people born in all countries except India and China) and some were backlogged (the employment-based third preference was current for priority dates earlier than August 1, 2002, meaning that the labor certification or Schedule A immigrant visa petition had to have been filed prior to August 1, 2002 for the adjustment of status to be granted). The actual priority dates available in October may be earlier or later than the priority dates previously published, given the extraordinary number of applications approved in June by USCIS.
Where can I get further information?
For further information about the effect of the priority date retrogression, please contact the Firm, and one of our staff will assist you.
