July 2, 2007
As reported last week (http://www.immigrationlawgroup.net/news/20070629a.php), there were rumors that the Department of State (DOS) may revise the July Visa Bulletin to retrogress priority cut-off dates in the first week of July.
Today, those rumors proved to be true, as the DOS took unprecedented action in revising the July Visa Bulletin to indicate that all employment-based immigrant visas (i.e., "green cards" or "GCs") have already been allocated for the entire fiscal year, and USCIS announced that it is thereby rejecting all AOS applications filed by applicants who do not have a current priority dates under the revised July Visa Bulletin.
In light of today's development, clients who have yet to file have asked whether they should proceed to file, and clients for whom we have already filed their AOS application over the weekend have asked whether their application will provide any benefits. This is a decision for each individual to make, but the following are some factors to consider:
1. AILF's Legal Action Center is preparing to litigate this issue. If they prevail and you filed an application that was rejected during the month of July, you would have the strongest legal claims compared to someone did not file, as some case law indicates that where an applicant did not apply or permitted the agency to turn the applicant away without evidence they had applied, those beneficiaries were not eligible for the remedies ordered by the court.
2. In our opinion, the likely remedy, assuming the lawsuit is successful, would be that USCIS would be ordered to accept the AOS applications that were filed during the month of July. The court cannot compel actual approvals of these cases since immigrant visa numbers are in fact not available, and the number of visas available each year is a matter of federal statutory law, and is not subject to change by a judge. Thus, the benefit of the suit will likely to be limited to allowing applicants and their family members to have a pending AOS case. The benefit to having a pending AOS application is mainly the ability to apply for EAD (which especially benefits spouses who may not otherwise have work authorization) and AP, as well as AOS portability (the ability to port to a new employer 180 days after the application has been received for processing).
3. If your application has not been filed, and you are considering filing, note that the regular attorney fee is applicable, regardless of the end result. However, should we be able to re-file your case before the end of this year, either because of successful legal action or because your priority date again becomes current by the end of December, we will reduce the legal fee for your next AOS application by 30%. If we cannot re-file until 2008 or later, there will be too much information and documentation change to warrant a discounted fee. Additionally, since the application will likely not be accepted for processing in the near future, we will not file for EAD or AP at this time. However, should your AOS application be accepted, we can then file your applications for EAD and AP, and do so at no additional fees (other than the applicable USCIS filing fee).
In light of the fact the Visa Bulletin was revised on the first business-day of July, we do not believe it matters whether an application is received by USCIS on July 2nd or July 31st. Therefore, we will continue to file AOS applications on a first-in first-out basis, and do so before the end of the month, but the need to file urgently (i.e., early in the month), before the anticipated revision to the Visa Bulletin no longer exists.
Last but not least, we'd like to express our sincere empathy with our clients who suffered through this "bait and switch" experience over the past 2 weeks. We are appalled by the irresponsible actions of the DOS, which caused many people to change their summer travel plans and rush to get medical exams and other documents. We along with the American Immigration Lawyers Association will do our part to urge the DOS and USCIS to remedy this by accepting applications that were filed in reliance on their information.
Please respond by email to your normal point of contact if you wish to continue with the processing of your I-485.