The release of the revised October 2015 Visa Bulletin on September 25, 2015 has incensed and infuriated thousands of immigrants expecting to benefit from the original October Visa Bulletin issued on September 9, 2015. The changes in the revised Visa Bulletin effectively excluded them from the immigration relief they stood to benefit under the original October Visa Bulletin.
In the original October Visa Bulletin, the Department of State (DOS) listed, for the first time, two important dates: the “filing date” and the “final action date.” By listing a “filing date,” beneficiaries of employment-based and family-based preference petitions could apply for adjustment of status even before their priority dates would become current.
Adjudication of their green card applications, however, would not be made until the “final action date.” Adjustment applicants, in the meantime, would obtain benefits such as employment authorization and advance parole. The much-awaited change was part of the President’s efforts to modernize the immigration system.
Four business days before the United States Citizenship and Immigration Services (USCIS) was supposed to start to accept adjustment applications under the new procedure, a revised Visa Bulletin was released which moved the “filing dates” back. In doing so, thousands of immigrants would no longer be eligible to file for adjustment of status on October 1.
On September 28, 2015, a Class Action suit was filed before the U.S. District Court for the Western District of Washington seeking, among others, to strike down the revised October Visa Bulletin and compelling the USCIS to accept adjustment applications pursuant to the original October Visa Bulletin.
The suit was brought against the U.S. Department of State, Secretary of State John Kerry, Department of Homeland Security (DHS), Secretary of Homeland Security Jeh Johnson, the United States Citizenship Immigration Services (USCIS) and USCIS Director Leon Rodriguez.
It alleged that the revision constitutes an “arbitrary and capricious agency action contrary to law, as well as an abuse of the agency’s discretion, and violates Plaintiff’s due-process rights and the Administrative Procedure Act (“APA”)”.”
The Complaint was brought by fifteen individuals and the thousands of class members they seek to represent who are beneficiaries of approved employment-based petitions for highly skilled workers.
The revised October Visa Bulletin excluded EB2 China applicants with priority dates between the original Bulletin’s filing date of May 1, 2014 and the revised filing date of January 1, 2013. It also excluded EB2 India applicants with priority dates between the original filing date of July 1, 2011 and the revised filing date of July 1, 2009, and EB3 Philippine applicants with priority dates between the original filing date of January 1, 2015 and the revised filing date of January 1, 2010.
According to the Complaint, Plaintiffs and thousands of others, reasonably relying on the original October Visa Bulletin, started preparing their adjustment of status applications. They took time off work to obtain the required documents for their applications, and arranged for the provision and translation of their documents from their home countries.
They paid attorneys to prepare their applications. They went to see USCIS-approved civil surgeons and paid for the required medical exam and vaccinations. With only 22 days from the date the October Visa Bulletin was released to the date the USCIS would start accepting applications on October 1, they rushed to complete all the requirements expecting to submit their applications on that day.
With the abrupt changes in the revised October Visa Bulletin, they would not be able to submit their applications as promised in the original October Visa Bulletin and they are now left without recourse.
Plaintiffs reasonably relied on the original October Visa Bulletin which was confirmed by the USCIS as announced in its website. Plaintiffs also alleged that there was no reasoned explanation whatsoever for the DOS’s radical recalculation. The DOS merely stated that after consulting with the Department of Homeland Security, it has decided that it is going to change the filing dates.
Plaintiffs pointed out in the Complaint that this is not the first time that this has happened. In the year 2007, the DOS also reissued a visa bulletin which affected thousands of green card applicants. The government, however, took it back after immense pressure from the public. They are expecting the same outcome with the revised October Visa Bulletin.
(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212)695-5281)