Chaos for Employment-Based Green Card Applicants
July 5, 2007

My fellow immigration lawyers and I find ourselves reeling after two notices issued by the State Department in the past three weeks.

First, on June 13, 2007, the State Department issued its July, 2007 visa bulletin. As many of you know, this bulletin comes out each month and announces visa availability in family-based and employment-based categories for the upcoming month. At times the availability is indicated by listing cut-off dates in particular categories, and any applicant in that category with a priority date prior to the cut-off date listed should have access to an available visa. At other times, a category may be marked with a “U” for “unavailable”, meaning no visas are currently available in that category. Or, a category may be marked with a “C” for “current”, meaning that visas are available to all eligible persons in that category.

The bulletin issued on June 13 opened a huge window and marked the first, second and third employment-based categories with a “C”, excluding only the “Other Workers” category. It was wonderful news for many intending immigrants, both in and outside the U.S., who have been waiting for visa availability. Ironically, on June 13, myself and many other immigration lawyers were in Florida for the American Immigration Lawyers Association (AILA) conference and were not in our offices to immediately contact our clients. We all returned home with lists of clients in our minds that would now be eligible to adjust their status to that of permanent residents or undergo immigrant visa processing. We were pleased to inform our clients and begin to process their paperwork, instructing them to obtain photographs of themselves and medical exams to be submitted to USCIS.

Immigrants all over the U.S. quickly assembled funds for filing fees, legal fees, medical exams and photographs-adding up to a hefty cost in a short amount of time, particularly for applicants whose immediate family members could also apply for “derivative” immigration benefits. For the past weeks, my office commenced work to submit adjustment of status applications for qualifying employment based applicants and their family members on the earliest possible date, July 2, 2007.

Then, on that very day, the Department of State issued a revised July, 2007 visa bulletin, stating that all of the employment based visas has been allocated for 2007. Window closed. Paperwork halted. Applications not sent.

The bulletin revision stated that visas would again become available in employment based categories in October, 2007-when fiscal year 2008 visas can begin to be allocated. However, it is important to note that they may be available in each category but with priority date cut-offs, rather than the “current” format in which they originally became available to all persons in the category. Therefore, there is no way to predict or advise an individual client about when the window will open again in their particular case.

The American Immigration Lawyers Association is calling this a “mess”, and asking why and how this happened. It has been reported that U.S. Citizenship and Immigration Services processed all of the pending employment-based adjustment of status cases on their shelves over the weekend of June 30, 2007, so that all of the allocated visas for 2007 would be used before the July 2, 2007 bulletin took effect. This means that all employment based I-485 applications, if sent, are being rejected.

There is a question of whether USCIS took the actions they did because they could not have handled such a rush of applications, and that the State Department made a mistake in opening such a big window. However, USCIS does stand to be the beneficiary of a financial windfall by making these applicants wait until at least October, 2007 – because Immigration filing fees will be notably increasing after July 30, 2007.

Motivations aside, there is no denying that the events of the past few weeks leave many immigrants and their advocates feeling frustrated, and last I heard, class action lawsuits are being prepared. Stay tuned.

Copyright © 2007-2008, By Law Offices of Richard Hanus, Chicago, Illinois