Hurry Up and Wait!- The October 2015 Visa Bulletin Fiasco

Jennifer L. Cory, Esq., Partner
N.C. Board Certified Immigration Law Specialist
Jennifer.Cory@garfinkelimmigration.com


The Department of State Backtracks Affecting Thousands Prepared to File Applications for Permanent Residence

On September 9, 2015, the Department of State (DOS) published the first of two October 2015 Visa Bulletins announcing new procedures to allow individuals in long lines to receive permanent residency to start their immigrant visa paperwork or apply for adjustment of status before their priority date becomes current and an immigrant visa becomes immediately available.

The initial October Visa Bulletin, established two new charts listing dates for each permanent residency preference category and country of chargeability: 1.) An "Application Final Actions Dates" chart ("Final Action Date"); and 2.) a "Dates for Filing Applications chart ("Filing Date"). (Previous Visa Bulletins listed only what are now called the "Final Action Date.") Now, the "Final Action Date," chart determines when an adjustment application or immigrant visa application may be approved. The "Filing Date," chart determines when an adjustment of status application may be filed.

This is an important change as it potentially allows foreign nationals to obtain ancillary benefits available to green card applicants, such as employment authorization documents, advance parole (travel) documents, and employer portability. This is of particular importance for Indian and Chinese nationals with approved I-140 petitions as the demand is highest for these countries in the most commonly used Employment Based preference categories. As a result, many have awaited the opportunity to file their applications for years.

The "Filing Date" listed in the initial October 2015 Visa Bulletin published on September 9, 2015 under the newly issued procedures would have allowed some of these individuals to file as much as six years earlier. Following the release of the Visa Bulletin on September 9, thousands of such individuals spent time and money getting their applications ready to file in October based on the "Dates for Filing."

However, on September 25, 2015, the DOS published a second Visa Bulletin for October 2015 that supersedes the October bulletin originally published on September 9. In a statement announcing the change, U.S. Citizenship and Immigration Services (USCIS) explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted "to better reflect a timeframe justifying immediate action in the application process." The new filing dates translate to longer filing wait-times.

The issuance of the revised October Visa Bulletin resulting in the backlog is a direct result of the USCIS' huge miscalculation in determining visa availability. Below are a few examples of the extreme changes in the revised October Visa Bulletin:

* EB2 China: Moved from 5/1/2014 to 1/1/2013 (1 year 5 months)
* EB2 India: Moved from 7/1/2011 to 7/1/2009 (2 years)
* EB3 Philippines: Moved from 1/1/2015 to 1/1/2010 (5 years)
* FB1 Mexico: Moved from 7/1/1995 to 4/1/1995 (3 months)
* FB3 Mexico: Moved from 10/1/1996 to 5/1/1995 (1 year 5 months)

The fallout is that many individuals and families anticipating filing in October are no longer eligible and will continue to face lengthy waits before they can submit their applications for permanent residence and ancillary benefits- unless the situation changes.

Advocates are pursuing possible avenues to make that happen. The DOS, USCIS, and several government officials now face a class action law suit filed in Washington, DC federal court September 28 over the "abrupt" changes to October's Visa Bulletin. Plaintiffs claiming class membership number in the thousands. On September 30, plaintiffs in the class action lodged a motion for a temporary restraining order, asking that the court force USCIS to accept adjustment requests filed by people who would fall within the proposed class. The plaintiffs seek to represent all immigrants in the EB-2 category who would have been able to file to adjust status on October 1 under the original visa bulletin but are ineligible under the revised one.

A similar battle occurred in 2007, after DOS said certain highly skilled individuals could apply for permanent residency, but reversed the announcement just days later, saying no more green cards were available. In that instance, after threats of lawsuit and congressional inquiries, USCIS decided to honor the original bulletin.

We will monitor this topic and post additional guidance when available to our website and social media. Should you have questions on how this topic may affect you, your family, or friends, please contact the attorney assisting with your case or schedule a consultation here.