News Release from Jewell & Associates - July 2, 2007
As many readers are aware, the U.S. Department of State (DOS) published its July 2007 Visa Bulletin in mid-June, announcing that, for the month of July, all employment-based immigrant categories would be “current.” This meant that, regardless how recent the priority date (the filing date of an approved labor certification application or, in labor certification-exempt cases, the filing date of the I-140 immigrant petition), all employment-based immigrants could advance to the final stage of the green card process by filing their I-485 adjustment-of-status (AOS) applications with USCIS in July -- concurrently with the I-140 immigrant petition if the I-140 was not already filed. DOS’s stated purpose in opening up all categories for the month of July was to generate “increased demand” for immigrant visas that could be granted before the end of the government’s fiscal year on September 30, 2007. The U.S.’s immigration scheme allows for 140,000 employment-based immigration visas (green cards) to be approved each year. The Department of Homeland Security, through its immigration agency USCIS, was thought to have approved only a fraction of the 140,000 green cards allowed, so DOS’s response was to make all categories “current” for July in order to bring more approvable applications into the system before the end of the fiscal year.
It is unprecedented for DOS to revise a published Visa Bulletin, but this morning DOS placed its July Visa Bulletin in the “archives” section of their web site and announced that, because USCIS claims it has suddenly approved 60,000 green card applications in the past month, DOS will allocate no more visa numbers this fiscal year. DOS does not say so explicitly, but the implied message is that DOS believes USCIS will come close to approving all 140,000 green cards for FY-2007, so there is now no need to let more applicants into the system in July. USCIS then followed up with its own announcement today, stating that it will reject all I-485s received today and afterwards, in all employment-based immigrant categories. This does not affect the filing of I-140s, which will still be accepted. It is only the I-485s USCIS is rejecting, and apparently in all employment-based immigrant categories for all countries of birth and all priority dates.
It is notable that the USCIS announcement today appears to contravene USCIS’s own regulation at 8 CFR Section 245.1(g)(1), which states:
(g) Availability of immigrant visas under section 245 and priority dates --
(1) Availability of immigrant visas under section 245. An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 is the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
Many applicants’ I-485s (with I-140s if applicable) arrived at USCIS today. Others will be delivered tomorrow or later in the week or month. Other would-be applicants have chosen to pursue their I-140s, but to hold off on filing their I-485s until there is a clear signal from the government that the I-485s will be accepted. We do not believe that any of these approaches is wrong or potentially harmful. USCIS will simply keep and process any I-140s it receives, and will return all I-485s for re-filing later. In view of this, filing the I-485 may seem a wasted effort. On the other hand, it is possible that the government will be sued in a class action law suit over its recent actions. In that case, individuals who attempted to file I-485s and had them rejected or returned may have stronger claims to benefit from a favorable result in the law suit.
© Jewell & Associates 2007
