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Greg Siskind on Immigration Law and Policy

FAQs (part 1)

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Okay, this thing will take me a while to get through since so many great questions were asked. I think what I'll do over the next day or so is just post questions as I get them finished. There are likely to be many and some of the questions you've posted are ones that I didn't even think about but which are very important.

So here goes (I start with the most basic ones and then I'll start to get to the more complicated issues in later FAQs). Please let me know if you see any glaring errors. This is new territory in some cases and I'm trying to get this up quickly.

What happened with
the Visa Bulletin that made everyone so mad?>>

>>Under the US immigration system, green cards are set aside for employment-based cases,
family-based cases, asylees and green card lottery winners. There are quotas
for all of these categories and when demand exceeds available numbers, the
State Department sets cut off dates in the various categories. Each month it
releases a Visa Bulletin stating that for a particular green card category,
they are processing cases with receipts dated earlier than a particular date.


In several of the employment-based categories, the cutoff dates
have been backlogged for several years because there are far more applicants
than the annual quota of 140,000 will cover. Unfortunately, despite this
tremendous demand, tens of thousands of green cards are not issued each year
because USCIS does not process enough cases and the green card numbers not used
are lost rather than forwarding to the next year.


In an effort to put an end to the loss of the green cards, on
June 13th, the State Department issued a Visa Bulletin for the month
of July that made most of the employment-based categories current. The hope was
that by flooding USCIS with applications, the agency would feel compelled to
process enough applications to ensure all of the 140,000 allotted green cards
were issued. And if that could not be accomplished, then at least a lot of
people would get the benefits of having a pending adjustment application such
as an employment card, ease of travel and the ability to change employers if a
case has been pending a long time.>

For reasons that have not fully been revealed, USCIS decided
to engage in a frantic processing of applications in the hopes of completing
enough cases before the beginning of July to be able to get the State
Department to issue a revised Visa Bulletin shutting out all of the applications
that were to be received in July.>

USCIS did manage to get the word to DOS that all of the visa
numbers were used during the am of July 2nd, the first business day
of the month after several thousand cases were received that morning. And the
Department of State did indeed issue a revised bulletin that day making all
employment-based categories unavailable until October. USCIS rejected all cases
received on the 2nd, even those cases sent in before they notified
Congress of exhausting the visas.>

Outrage was registered on many fronts including the halls of
Congress (hearings were scheduled in the House), the immigration bar (which
began preparing a massive class action lawsuit), and, most interestingly, in
the immigrant community itself which was able to quickly organize and protest
in ways that have rarely been seen in the past. Many people told accounts of
spending thousands of dollars needlessly, of flying to medical appointments
across the country, of cutting trips short to get back to the US since one
needs to be present in the US to apply to adjust status and even of having to
have parents frantically rush to gather documents like birth certificates from
their home countries.>

The first sign that the pressure was affecting USCIS was the
leaking of information that USCIS' headquarters instructed service centers to
hold applications and await further instruction after the first day rather than
rejecting them.>

After much behind the scenes negotiating, on July 17th,
USCIS took the extraordinary step of completely reversing its decision and
issuing a statement that it would resume accepting adjustment applications until
August 17th, 2007. The State Department simultaneously released the
August Visa Bulletin announcing that while all employment categories were
unavailable, they were revoking the revised July Visa Bulletin and cases could
again be filed for pursuant to that earlier bulletin.>


OK, so what exactly
did USCIS announce in the July 17th press release?

First and foremost, the agency announced that it was again
going to process applications under the July Visa Bulletin issued in mid-June
and that applications would be accepted until August 17th, 31 days
from the date of the bulletin.>

In the release, Emilio Gonzalez, the Director of USCIS stated "The
public reaction to the July 2 announcement made it clear that the federal
government's management of this process needs further review I am committed to
working with Congress and the State Department to implement a more efficient
system in line with public expectations.">

This statement is important because it signals that USCIS will
be working with Congress in the coming weeks to develop legislation that could
address some of the underlying issues that turned this in to a crisis. Two areas ripe for legislative action are rolling over unused green card numbers from one year to the next and allowing adjustment applications to be filed without having to wait on a visa number to be available.>

Aside from allowing people to file until the 17th,
the press release made clear that applications properly received and being held
at USCIS would be allowed to be processed and that the fee schedule in place
until July 30th would be honored until August 17th (though
only for adjustment applications and not for the many other types of
applications affected by the announced fee increases).>

What if I filed my
case on July 2nd and it was rejected? Do I get credit for the
earlier filing when it comes time to determining my priority date and the order
my case is processed? Is there any advantage to getting my case filed sooner
rather than close to August 17th?


Priority dates that determine the time when a visa number
will be made available is determined on the date that a labor certification
case is filed or, in cases where no labor certification is required, on the
date the I-140 immigrant visa application is filed.>

Some applicants in July will get to use the unused visa
numbers still available for this year, but many more applications are expected
to be received than visa numbers are available. That means the waiting times
could run in to the years for many people filing adjustment applications this

For people who got their applications in early this month,
they are in the best position to receive one of the coveted remaining green
cards for this fiscal year. So it is especially important that people who filed
early in the month get credited for filing on the 2nd. In its press
release, USCIS did not state how cases filed and rejected on the 2nd
are to be handled other than to say that properly filed applications would be
accepted. This presumably covers the many cases filed after the second that
were held, but it doesn't explain what will happen to the cases received
earlier. We hope USCIS will issue special instructions to issue July 2nd
receipt dates to those who are able to document they attempted to file. We
presume some folks are still waiting on their July 2nd cases to be
returned and are debating refiling new cases rather than waiting.
Unfortunately, there is a risk of not getting the package back before August 17th
and some people will need to refile without proof of the earlier filing.
Hopefully, again, USCIS will institute a process for such individuals to avoid
being penalized.>

USCIS has not announced any details yet on how it will
determine which cases get 2007 visa numbers that might still be available. We
also don't know yet how cases will be processed that are not in the batch of
cases that get green card numbers this year. For those who will have to get
numbers in future years, applications should be worked by the order of the
priority date in their respective categories. So applicants with labor certifications approved some time back,
for example, should go before people in the same category with later priority

For individuals filing cases not requiring a labor
certification (such as Schedule A cases and national interest waivers), the
priority date is the date of filing. Because there may be hundreds of thousands
of applications received between July 2nd and August 17th
with many of these cases not requiring a labor certification, the date during
this six week period a case is filed could make a big difference in terms of when
a case will complete processing. And, again, getting that July 2nd priority
date for those who filed early and were rejected could make a big difference in
when their cases are ultimately processed through to completion.

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  1. Viral Desai's Avatar

    In point #2, do you mean July 2nd filers will have their cases returned? My application reached July 2nd in morning. I have not received back my application. My understanding was July2nd files won't have any issues.

    Can you please explain?
  2. GC's Avatar
    Thanks for the info Greg !! Great compilation of information in such a short time !!!!!!
  3. Ella's Avatar
    Aah... This is very confusing. Why will the July 2nd applications be returned/rejected ? According to my lawyer, my applications reached USCIS on July 2nd and they have not received anything back yet. Should I refile ? This is painful .....
  4. dinsand's Avatar
    I understand that all the talk is about I-485 since these cases are backlogged but what about those going to do consular processing? How does this affect us?

    You said that : "For people who got their applications in early this month, they are in the best position to receive one of the coveted remaining green cards for this fiscal year. "

    My PD was current in June when my case went to the NVC which up till now has yet to issue me a fee bill, but now that the visa number is unavailable for my category, does that mean that those who filed I-485 earlier in July will get a visa number before me? And my case will languish in the NVC until it becomes available again?

    Does it also mean that DOS was not allocating proper visa numbers to certain categories? And allocating most if not all to retrogressed cases only?

    I totally admire your passion in keeping this blog. Wonderful source of commentary and information. Thanks.
  5. Viral Desai |'s Avatar

    This is confusing -- in short, if an application has reached July 2 and has not be returned, do we need to file again?
    Can you please confirm?

  6. Greg Siskind's Avatar
    Viral - We think most July 2nd cases were rejected and that the decision to hold cases being received did not come until later. Hopefully, USCIS will clarify which cases were rejected and which were not.
  7. Viral Desai |'s Avatar
    Thanks Greg for you comment.

    Does it mean, we have to file again? I haven't received my application back from USCIS. What is your suggestion?
  8. Greg Siskind's Avatar
    Just to clarify, some cases received on July 2nd were rejected according to the USCIS' own announcement. I am not sure if people have started to get those applications back or not yet. Perhaps people on the blog can weigh in. The dilemma is what to do if you don't know whether the case is in or not. No clear answer yet. AILA may get some info on this when it presumably meets with USCIS on this very soon.
  9. KNoel's Avatar

    You are the man!!

    My 1 485 application was sent and received on July 2nd 2007 at 9.01am.
    How do I determine if it was rejected ? Should I simply refile, just in case?


  10. jun's Avatar
    Greg, I am on schedule A therefore as you were saying, my priority date is the time I filed I-140 (ofcourse I will file I-485, EAD/AP concurrently).

    My case is that the best time for me to apply is August 17, which the 61st day of my arrival using a "non-immigrant visa" (not H1 or L1). How do you think should I proceed?
  11. N S's Avatar
    It would be totally illogical and irrational to return the applications that were received on Jul 2nd and request them to refile. This is extra work on both sides of the aisle. To send it back and to refile. I have filed mine on Jul 2nd and haven't heard any thing yet. Also, If I remember correctly, we had a news release that they were holding on to the applications they were receiving. That tells me that they are not going to do the extra work of returning them and re-receiving them again from the applicants. A friend of mine who filed on Jun 12th has his receipt notice date on Jul 5th. As there were not many AOS applications filed after the first week of July, first week July filers should see some action starting next week or mid week.

    What say?
  12. mas's Avatar
    Thanks Greg! I got a question for you: What will happen about people filing this July and asking for Advance Parole and EAD? Does the approvals for AP and EAD wait until a visa number is available or can one apply for AP/EAD after filing i485 even there is no visa available?
  13. Greg Siskind's Avatar
    Viral - Not an easy call, but I'd probably wait a few days to get the application back or until USCIS announces how they're going to handle those cases. Your lawyer should also be able to offer insight.
  14. sri's Avatar
    I also got my app sent on July 2nd. My lawyer told me, today, that they do NOT have it back from USCIS, but a rcpt no: is also not got till now.

    Am planning to wait for a see if anything happens. Can we ask USCIS through AILA or can my lawyer ask USCIS as part of case I140 was filed premium and hence there is a dedicated phone no: or something.
  15. Greg Siskind's Avatar
    Here is the text of the announcement from USCIS on July 2nd:

    WASHINGTON--The Department of State has revised its July Visa Bulletin to reflect that all available employment-based immigrant visas have been allocated for fiscal year 2007.
    As a result, beginning today, U.S. Citizenship and Immigration Services (USCIS) is rejecting applications to adjust status (Form I-485) filed by aliens whose priority dates are not current under the revised July Visa Bulletin.
    U.S. immigration law limits the number of employment-based immigrant visas that may be issued each fiscal year.

    I was actually the one to report that cases were being held at the service centers and this was because of a first hand account from someone actually at the service center. But I was told that some applications were, in fact, rejected before word came down from HQ that cases were to be held until further instructions were issued.
  16. BJ's Avatar
    To hit July 2 filers like this is absolutely brutal. This would be penalizing people who were most organized and strived to get all the documentation ready by the time mid-June bulletin came in effect. Refiling does not seem like an easy option, since we'd have to go through the medical exam again!
  17. Jun's Avatar
    Greg, I sent you an e-mail. Kindly give me 2 minutes of your time. I'm in bad shape right now and don't know what to do. Although my lawyer advised that I can file, I am not so sure of her advise. I think there is still something wrong.


  18. RL's Avatar
    Greg, thanks for providing those insights. Could you please help me with a question?

    If I got my labor certificate certified (EB2) on Aug. 5th, would I be able to file I-140/I-485 concurrently before the Aug. 17 deadline?

    Many thanks.
  19. N S's Avatar

    Read the last para to find the below quoted line

    "Applications already properly filed with USCIS will be accepted." I understand it as, if any one who has filed between Jul 2 and Jul 17th should be fine. Even though they have not confirmed that they have not returned any applications, saying that applications filed properly are good means that they haven't returned any (if not any, returned very few). makes sense? or Am I reading too much?
  20. BJ's Avatar
    N S, I was thinking along the same lines. According to the link you posted all July 2 cases should be accepted. Greg mentioned that some cases got rejected. I guess, it is not known what 'rejected' means in this case. Whether USCIS employees rejected them and sent them back, or simply put in some pile to send back later. If it's the latter, there is hope for July 2 filers that this imaginary pile will be processed properly, i.e. without sending those cases back.
    It's all speculation at this point..
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