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 month.
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. So applicants with labor certifications approved some time back, for example, should go before people in the same category with later priority dates.
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.
What if I have applied for consular processing?
According to the Department of State consular filing applicants were largely unaffected by the USCIS actions. That is because visa numbers for applicants and US consulates were reserved prior to USCIS’ is announcement that all immigrant visa numbers were used. Many consular applicants of have been notified that their interviews have been scheduled. Those interviews should continue as planned. For those whose cases are still at the
National
Visa
Center
and have not yet been forwarded to consulates, the situation is less clear. Those cases may not be processed if visa numbers are not requested before the 2007 allotment is you step.
What is my a not be able to file an adjustment of status application between July 2 and July 16 caused me special harm?
There are a number of examples of individuals who may face special harm because they were not able to file adjustment applications during the first half of July. For example, some individuals had children turning 21 who “aged – out” making them ineligible to adjust status. Some individuals with status violations close to 180 days might not be eligible to adjust status under INA Section 245(k) if they were unable to file in time. Some individuals may not be eligible to extend their H-1B status if an adjustment application is not filed early enough.
While the USCIS press release did not discuss the handling of these kinds of cases, the agency did represent in negotiations that individuals would not face additional harms because of the agency’s failure accept applications. So hopefully USCIS will issue a statement clarifying how cases of these types will be handled.
If I filed my case previously without an application for employment authorization or advance parole, how do I apply now for those benefits?
If you failed to apply for work card or a travel document at the time you filed your adjustment of status application, you need to wait until you received a receipt for the I-485 petition. You can then apply for work and travel benefits by providing a copy of the receipt along with the other forms and supporting documentation.
Will the massive number of applications expected to be received over the next month affect issuance of receipts as well as employment cards and travel documents?
While I am not in a position to speak precisely to USCIS' ability to handle large volume of applications that will be coming in over the next several weeks, based on past performance I think it is safe to assume that the agency will have enormous difficulty properly processing very high number of applications. I would expect receipts to take much longer than normal perhaps more than a month and I believe USCIS will have difficulty living up to establish timelines for work and travel documents. In theory, work document applicants should be able to process at a local USCIS office if an application is not adjudicated within 90 days. However, historically USCIS has had a great deal of difficulty handling applications received as part of a surge.