The ABC's of Immigration: Sorting Out The July Visa Bulletin Changes

Dear Readers: 

Below is a list of questions and answers we've compiled regarding the big news this week that USCIS was reversing policy and going to accept hundreds of thousands of green card applications under the July Visa Bulletin after all. We are presenting this as a special issue of the newsletter since the news is so important. We are also including with this issue the August Visa Bulletin from the State Department. 

Many of you may have been following developments on my blog at http://blogs.ilw.com/gregsiskind. The blog has become extremely popular and received nearly half a million unique page views over the past week as well as more than 800 comments on my posts. Many of the questions in this ABCs article were culled from questions blog readers asked.  

Finally, as always, if you are interested in becoming a Siskind Susser Bland client, please feel welcome to email me at gsiskind@visalaw.com or contact us at 800-748-3819 to arrange for a telephone or in person consultation with one of our lawyers.

Regards,

Greg Siskind

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What happened with the Visa Bulletin that made everyone so mad?

Under the US immigration system, green cards are set aside for employment-based cases, family-based cases, asylees and green card lottery winners. There are quotas for all of these categories and when demand exceeds available numbers, the State Department sets cut off dates in the various categories. Each month it releases a Visa Bulletin stating that for a particular green card category, they are processing cases with receipts dated earlier than a particular date.

In several of the employment-based categories, the cutoff dates have been backlogged for several years because there are far more applicants than the annual quota of 140,000 will cover. Unfortunately, despite this tremendous demand, tens of thousands of green cards are not issued each year because USCIS does not process enough cases and the green card numbers not used are lost rather than forwarding to the next year.

In an effort to put an end to the loss of the green cards, on June 13^th, the State Department issued a Visa Bulletin for the month of July that made most of the employment-based categories current. The hope was that by flooding USCIS with applications, the agency would feel compelled to process enough applications to ensure all of the 140,000 allotted green cards were issued. And if that could not be accomplished, then at least a lot of people would get the benefits of having a pending adjustment application such as an employment card, ease of travel and the ability to change employers if a case has been pending a long time.  

For reasons that have not fully been revealed, USCIS decided to engage in a frantic processing of applications in the hopes of completing enough cases before the beginning of July to be able to get the State Department to issue a revised Visa Bulletin shutting out all of the applications that were to be received in July.  

USCIS did manage to get the word to DOS that all of the visa numbers were used during the A.M. of July 2^nd, the first business day of the month after several thousand cases were received that morning. Also, the Department of State did indeed issue a revised bulletin that day making all employment-based categories unavailable until October. USCIS rejected all cases received on the 2^nd, even those cases sent in before they notified Congress of exhausting the visas.  

Outrage was registered on many fronts, including the halls of Congress (hearings were scheduled in the House), the immigration bar (which began preparing a massive class action lawsuit), and most interestingly, the immigrant community itself was able to quickly organize and protest in ways that have rarely been seen in the past. Many people told accounts of spending thousands of dollars needlessly, of flying to medical appointments across the country, of cutting trips short to get back to the US since one needs to be present in the US to apply to adjust status and even of having to have parents frantically rush to gather documents like birth certificates from their home countries.  

The first sign that the pressure was affecting USCIS was the leaking of information that USCIS’ headquarters instructed service centers to hold applications and await further instruction after the first day rather than rejecting them.  

After much behind the scenes negotiating, on July 17^th, USCIS took the extraordinary step of completely reversing its decision and issuing a statement that it would resume accepting adjustment applications until August 17^th, 2007. The State Department simultaneously released the August Visa Bulletin announcing that while all employment categories were unavailable, they were revoking the revised July Visa Bulletin and cases could again be filed for pursuant to that earlier bulletin.  

OK, so what exactly did USCIS announce in the July 17^th press release?  

First and foremost, the agency announced that it was again going to process applications under the July Visa Bulletin issued in mid-June and that applications would be accepted until August 17^th, 31 days from the date of the bulletin.  

In the release, Emilio Gonzalez, the Director of USCIS stated that "[T]he public reaction to the July 2 announcement made it clear that the federal government’s management of this process needs further review I am committed to working with Congress and the State Department to implement a more efficient system in line with public expectations."  

This statement is important because it signals that USCIS will be working with Congress in the coming weeks to develop legislation that could address some of the underlying issues that turned this in to a crisis. Two areas ripe for legislative action are rolling over unused green card numbers from one year to the next and allowing adjustment applications to be filed without having to wait on a visa number to be available.  

Aside from allowing people to file until the 17^th, the press release made clear that applications properly received and being held at USCIS would be allowed to be processed and that the fee schedule in place until July 30^th would be honored until August 17^th (though only for adjustment applications and not for the many other types of applications affected by the announced fee increases).  

What if I filed my case on July 2^nd and it was rejected? Do I get credit for the earlier filing when it comes time to determining my priority date and the order my case is processed? Is there any advantage to getting my case filed sooner rather than close to August 17^th?
 

Priority dates that determine the time when a visa number will be made available is determined on the date that a labor certification case is filed or, in cases where no labor certification is required, on the date the I-140 immigrant visa application is filed.  

Some applicants in July will get to use the unused visa numbers still available for this year, but many more applications are expected to be received than visa numbers are available. That means the waiting times could run into years for many people filing adjustment applications this month.  

For people who got their applications in early this month, they are in the best position to receive one of the coveted remaining green cards for this fiscal year. So it is especially important that people who filed early in the month get credited for filing on the 2^nd. In its press release, USCIS did not state how cases filed and rejected on the 2^nd are to be handled other than to say that properly filed applications would be accepted. This presumably covers the many cases filed after the second that were held, but it doesn’t explain what will happen to the cases received earlier. We hope USCIS will issue special instructions to issue July 2^nd receipt dates to those who are able to document they attempted to file. We presume some folks are still waiting on their July 2^nd cases to be returned and are debating refiling new cases rather than waiting. Unfortunately, there is a risk of not getting the package back before August 17^th and some people will need to refile without proof of the earlier filing. Hopefully, again, USCIS will institute a process for such individuals to avoid being penalized.  

USCIS has not announced any details yet on how it will determine which cases get 2007 visa numbers that might still be available. We also don’t know yet how cases will be processed that are not in the batch of cases that get green card numbers this year. For those who will have to get numbers in future years, applications should be worked by the order of the priority date in their respective categories. So applicants with labor certifications approved some time back, for example, should go before people in the same category with later priority dates.  

For individuals filing cases not requiring a labor certification (such as Schedule A cases and national interest waivers), the priority date is the date of filing. Because there may be hundreds of thousands of applications received between July 2^nd and August 17^th with many of these cases not requiring a labor certification, the date during this six week period a case is filed could make a big difference in terms of when a case will complete processing. Again, getting that July 2^nd priority date for those who filed early and were rejected could make a big difference in when their cases are ultimately processed through to completion.

What if I have applied for consular processing?

According to the Department of State, consular filing applicants were largely unaffected by the USCIS actions. That is because visa numbers for applicants and US consulates were reserved prior to the USCIS announcement that all immigrant visa numbers were used. Many consular applicants of have been notified that their interviews have been scheduled, and that these interviews should continue as planned. For those whose cases are still at the National Visa Center and have not yet been forwarded to consulates, the situation is less clear. Those cases may not be processed if visa numbers are not requested before the 2007 allotment.

Why has my not filing an adjustment of status application between July 2 and July 16 caused me special harm?  

There are a number of examples of individuals who may face special harm because they were not able to file adjustment applications during the first half of July. For example, some individuals had children turning 21 who "aged out" making them ineligible to adjust status. Some individuals with status violations close to 180 days might not be eligible to adjust status under INA Section 245(k) if they were unable to file in time. Some individuals may not be eligible to extend their H-1B status if an adjustment application is not filed early enough.

While the USCIS press release did not discuss the handling of these kinds of cases, the agency did represent in negotiations that individuals would not face additional harms because of the agency’s failure accept applications. So hopefully USCIS will issue a statement clarifying how cases of these types will be handled.  

If I filed my case previously without an application for employment authorization or advance parole, how do I apply now for those benefits?

If you failed to apply for work card or a travel document at the time you filed your adjustment of status application, you need to wait until you received a receipt for the I-485 petition. You can then apply for work and travel benefits by providing a copy of the receipt along with the other forms and supporting documentation.  

Will the massive number of applications expected to be received over the next month affect issuance of receipts as well as employment cards and travel documents?

While I am not in a position to speak precisely to USCIS' ability to handle large volume of applications that will be coming in over the next several weeks, based on past performance I think it is safe to assume that the agency will have enormous difficulty properly processing very high number of applications. I would expect receipts to take much longer than normal perhaps more than a month and I believe USCIS will have difficulty living up to establish timelines for work and travel documents. In theory, work document applicants should be able to process at a local USCIS office if an application is not adjudicated within 90 days.  However, historically USCIS has had a great deal of difficulty handling applications received as part of a surge.

Once all the numbers are used up, will I be able to get employment authorization document advance parole document?

Yes. Once you have filed an adjustment of status petition, even if numbers retrogress and visa numbers are no longer available you'll still be able to receive the benefits of an adjustment application including pursuing a work authorization document in a travel document.

I'm unable to apply for our adjust status before August 17; when is it likely that I will be able to file again?

It's very difficult to say because we do not know how many applications are going to be received. We also don't know what future demand for green cards will be. And we do not know whether future legislative changes will ease the situation. We think it is very likely, however, that lines for green cards in the second and third preference categories will be backlogged for a considerable time.

What if I'm not able to get my medical exam processed?

A recent USCIS memorandum stated that medical exams must be included with an adjustment of status application. So you should do everything you can to get an appointment. There are some who believe that USCIS issued this memorandum and order to reduce the number of applications that would be received under the July Visa Bulletin. However, there are no indications that USCIS policy will change.  

I filed my adjustment of status application several months ago and am waiting for approval. Will this turn of events affect when I should receive my green card approval?

That is a difficult question to answer because USCIS has not released information about the cases and who was able to successfully complete for processing. What is likely however is that you will be ahead of all of the people that are filing under the July Visa bulletin. Once new numbers become available in October, you should be in a better position.  

My spouse is currently out of the US working abroad. If I apply for adjustment of status under the July Visa Bulletin, can I later bring my spouse and to join me once visa numbers are available?  

Unfortunately, your spouse could be waiting a very long time outside the country if you do not apply to adjust status for your spouse while visa numbers are current. During previous periods when visa numbers retrogressed, spouses outside the US found themselves stuck unable to join their husbands and wives in the United States .  

What if my labor certification is approved after August 1st but before August 17th?

Again, there is no firm guidance here, but we hope such cases will be accepted as there is no statement that applications must have the necessary documents in the month of July. We will try and update this FAQ if we learn otherwise.  

Visa numbers for EB-3 other workers retrogressed in the middle of June under a revised State Department Visa Bulletin for the month. Does this announcement affect those cases?

Unfortunately, it does not.

What if my case was filed before July and is still being processed? Will this development affect when I will get a green card?

The news here is actually not so bad and may actually be good.  Your case may have been one of the ones pulled for adjudication during USCIS' mad rush to use up the years remaining visa numbers.  If that is the case, you may be getting your approval very soon. If you are not in that group, you'll have to wait until visa numbers become available again in October.  However, generally speaking your case should be processed before the cases accepted under the July Visa bulletin and the expected time it will take for your case to be fully processed should hopefully not be extended.

USCIS is set to end bi-specialization at the end of July.  Bi-specialization requires applicants to submit adjustment petitions to the Nebraska Service Center and then half of those cases are selected and sent to the Texas Service Center .  Does the USCIS announcement have any impact on this scheduled change and processing?

We have not heard of any change regarding locations for filing this.  However, it is important to note that as of several weeks ago, direct filing was permitted and applications could be submitted rather to Nebraska or, in the case of applications outside of the Nebraska Service Center jurisdiction, to Texas .  We are recommending to clients that cases be filed directly with the service center having jurisdiction over their case rather than simply filing in Nebraska .

On June 27, 2007, USCIS announced that it was temporarily suspending premium processing for I-140 petitions filed during the month of July because they were concerned about their ability to meet the expected surge in applications.  The suspension announcement said that premium processing would resume on August 1st.  Will USCIS resume processing on August 1st?

USCIS has not made any announcement yet on the subject.  However, it seems pretty likely given the changed circumstances that the suspension of premium processing for I-140 petitions will continue until August 17. 

Am I barred from having a second adjustment application pending if I decide to file another case based on a different I-140 approval?

There is little definitive guidance from USCIS regarding submission of a second I-485 petition or substitution of a new I-140 in an existing adjustment case.  Theoretically, there is no bar to either practice though in the latter case a priority date needs to be available for the new I-140.  The service centers have been inconsistent in their treatment of both of these kinds of cases and he should proceed extremely cautiously before pursuing either.

Rather than waiting on the advance parole document can I travel on my nonimmigrant visa?

An adjustment of status application is normally considered abandoned when an applicant leaves the US without an advance parole document.  However, USCIS will permit an adjustment applicant to travel and reenter the US using one's H-1B or L-1 status.  This can be especially convenient since an advance parole document can take several months to secure and one must remain in the United States wall waiting the document.  Note that if you are in L-1 or H-1B status in the US but never had a visa stamp in your passport you will be required to get a visa stamp before being permitted to reenter the United States . 

Note that 8 CFR 245.2(a)(4)(C) states the following:  

(C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa (if required) and the original I-797 receipt notice for the application for adjustment of status.

We are seeking clarification from USCIS if this is being enforced since presumably receipts could take longer than usual to be issued.

I filed an I-140 petition and still am waiting on a receipt. How do I file my adjustment of status petition if I don’t have my receipt?

Unfortunately, there is not an easy solution. You will most likely get denied if you don’t have an I-140 receipt. Given the longer deadline to file, it will often make sense to wait longer to see if you get the receipt. We also think USCIS may make concessions for people unable to file because of a lack of a receipt, but there is no firm news to report on this yet.

I understand that USCIS is not requiring applicants to pay the new higher fee after July 30th after all. But what if I WANT to pay the higher fee?

Some people would actually prefer the higher fee since under the new system; the initial fee includes the employment card and travel document. It appears that there may not be fees for renewals of EADs and advance parole documents, potentially a source of much savings. . This is a question yet to be resolved by USCIS both concerning whether there will be fees for renewals of EADs and parole documents as well as whether one has a choice in paying the old fee or the new fee. Furthermore, the USCIS announcement doesn’t make it clear whether the old fee will continue for I-485s packages only or cases where people are only filing an I-140 and also whether the higher fee would apply to people filing I-140s between August 1st and August 16th who are not going to get July priority dates.

Under AC21, if green card numbers are unavailable, one can apply for an H-1B for a one-time three year extension? When are the numbers no longer considered available? In other words, can I apply for the three year extension beginning on August 1st or do I have to wait until August 17th? 

Again, there is nothing official yet from USCIS advising on this and we hope to get advice soon.

I have heard that if my priority date is not established until after July 31st, I am not eligible to adjust under the July Visa Bulletin even if I file before August 16th.

This is one of the more confusing aspects of the USCIS announcement.  On its face, it would seem that anyone can file an employment-based adjustment application up until August 16th.   However, a closer analysis it may very well be the case that only people with priority dates established earlier than August 1st can file adjustments between August 1st and August 16th.  For example, one who wishes to file EB-1 might be ineligible to file later than July 31st because the priority date would not be established prior to August. On the other hand, someone whose labor certification is approved after August 1st might still be eligible because the priority date would have been earlier than August.

If this interpretation is in fact correct, this would also cause problems for nurses.  Nurses seeking green cards to work for unionized employers might have a problem given the built-in time frames for proceeding after getting a union consultation.  And all nurses would have to have cases filed before the month of August since priority dates are not established for nurses until the day of filing the I-140.   We expect further guidance from USCIS on this confusing subject. 

My spouse is not in the US right now. Can I file to adjust and then have my spouse come in a few months and file to adjust as part of my petition?

This is very unlikely. When your spouse comes, he or she will only be permitted to file an adjustment of status petition as a derivative of yours if your priority date is current. After August 16^th, the priority dates are not likely to be current in the EB-3 category for many years and possibly the same for the EB-2 category. The EB-1 category may become current in October. If you have a very old priority date, then this might not be as big of a problem for you, but many people are likely to find themselves in a difficult situation if all family member applications are not submitted before the deadline.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.