I-485 Fiasco Draws National Attention and Outrage! Posted Jul 12, 2007 ©MurthyDotCom As everyone who follows employment-based immigration issues knows by now, July 2, 2007 brought about an unprecedented catastrophe in the immigration world. The July 2007 Visa Bulletin, posted by the U.S. Department of State (DOS) in mid-June 2007, announced the good news that all employment-based categories would be current. But, just as filings were set to begin, the DOS shut the door and revised the Visa Bulletin so that no one could file. This was the result of the USCIS's claims to have used all the previously-available 60,000 visa numbers remaining for the 2007 fiscal year. ©MurthyDotCom What Just Happened to the Visa Numbers? ©MurthyDotCom This unfortunate result actually started with, what many intending immigrants to the U.S. considered, a stroke of luck for them. The U.S. Department of State (DOS) issued the July 2007 Visa Bulletin in mid-June 2007, showing that most employment-based applicants for the green card would be eligible to file their I-485s during July 2007. This unexpected development in the DOS's forward movement of immigrant visa numbers created a huge stir and considerable buzz throughout the immigrant community, grateful to finally have this as the golden opportunity to file for the last stage of their papers. Many had been waiting years for this opportunity. Others, much newer to the process, could not believe their luck in being able to avoid the years of waiting. ©MurthyDotCom Mysteriously, however, violating their own long-standing policy and procedure in issuing only monthly Visa Bulletins, the DOS issued a "revised" July Visa Bulletin on July 2, 2007; the very first day that cases could be filed with the USCIS under the July 2007 Visa Bulletin. The revision showed absolutely no more visa numbers available, meaning that no cases could be filed. Based on this revised July Bulletin, the U.S. Citizenship and Immigration Services (USCIS) stated that it would reject every I-485 filing received July, effective immediately. This was a rude shock and a reversal of the DOS pattern of issuing Visa Bulletins only once each month for many decades.  ©MurthyDotCom What is the Implication of Filing the I-485, Adjustment of Status? ©MurthyDotCom In order to understand the scope of the impact the government's change in position has had, it helps to understand the significance of this last stage of filing. Filing the Form I-485 is the last stage in the long and arduous journey towards obtaining the U.S. green card. This stage is also referred to as adjustment of status. It is when one is eligible to adjust status, from within the U.S., from being a nonimmigrant to an immigrant. So the terms "I-485" and "Adjustment of Status" are often used inter-changeably, in the parlance of U.S. immigration lawyers. After one has filed the I-485, the USCIS, upon request, will issue an employment authorization card for the principal applicant and all eligible family members. This provides a great deal of freedom for the individual in the employment context and for the spouse and older children to find employment. It also entitles the principal to change jobs or employers, if the I-485 is filed and pending for more than 180 days. This allows not only freedom in terms of employment, but also enhances the chances of a green card approval, even if the original employer (or sponsor) goes out of business or terminates the employment. So, there are substantive legal rights that are afforded in filing the I-485. One of the frustrating issues for H1Bs is that the H-4 spouse cannot work in the U.S., except in a possible, purely volunteer type of organization. There are other considerations that relate to older children of applicants, as protections contained in the Child Status Protection Act (CSPA) in part depend upon when the I-485 is filed. The CSPA addresses the problem of becoming ineligible for a green card with the family when the child turns 21 years of age, referred to as aging out. ©MurthyDotCom So, from a crescendo of high hopes, people watched as their hopes were dashed, literally overnight, on the morning of Monday, July 2nd. ©MurthyDotCom Why Did the Government Change its Procedure? ©MurthyDotCom The government's rationale for changing their position is based on the following argument. The U.S. cannot allow more than 140,000 employment-based applicants into the United States in a fiscal year. The fiscal year starts on October 1st of each year. The DOS calculated that apparently 60,000 immigrant visa numbers were available and unused, as of mid-June 2007. At that time, and following their usual pattern, the DOS issued the July Visa Bulletin. This advance issuance is standard procedure. This "opening of the doors" works in two ways. It opens the back door for pending cases to be approved, as a visa number needs to be assigned with each approval. It also opens the front door to allow for new case filings. The general scuttlebutt is that the USCIS did not want the front door opened for all the new cases. It would have created an enormous volume of work for the USCIS. And, we would note, the payments would have been made using the filing fees that were applicable in July, which are approximately half or one-third of what they will be as of July 30, 2007. ©MurthyDotCom It would appear that the USCIS has somehow completed processing 60,000 applicants within about two weeks - or at least they asked for that amount of visa numbers. Normally, they do not complete even 10,000 cases in a month. Accordingly, the DOS cannot allow any new immigrant visas to be issued, as the annual quota was exhausted within a few weeks. There are serious questions and doubts as to how the visa numbers could have been exhausted at such an alarming and unprecedented speed. ©MurthyDotCom Did USCIS Use Up So Many Numbers? ©MurthyDotCom The USCIS, through its spokesperson, denied that they worked over the weekend or that there was a push to use up numbers, according to the Washington Post. However, the New York Times article contains a reference to "sudden backlog-reduction efforts" by the USCIS, according to the DOS. The USCIS later retracted the statement that they had not worked over the weekend, when it was obvious, as there was direct evidence to the contrary. It is unclear why the USCIS felt the need to be anything but forthright and transparent in their dealings with their clients and the tax-paying public. The accountability of our government is one of the strengths of a democratic system. This type of flip-flop behavior undermines the integrity of the entire legal immigration system. ©MurthyDotCom This question of how so many numbers were used so quickly, since each one is supposed to represent a completed case adjudication, is the source of another hot immigration issue, at this time. It appears that some I-485s were approved incorrectly in June 2007, when no visa numbers were available to these individuals based on their priority dates. This may result in further complications for the USCIS and the DOS. There are very serious allegations of numbers being "pre-requested" before case approval, in violation of the regulations, as well. ©MurthyDotCom Why Should a Procedural Change Upset So Many? ©MurthyDotCom The procedures and the reliability of the Visa Bulletin, from the time it is first posted through the end of the month, are completely entrenched. It is reasonable for people to depend on their government not to play fast and loose with a procedure that has been in place for decades. Believing in late June that they could finally file their I-485s, many families changed their travel plans, scheduled appointments with civil surgeons to undertake expensive, mandatory medical tests, hired law firms to file the I-485 papers, and otherwise expended substantial time, effort, and money to file for their I-485s. ©MurthyDotCom We believe that the government slamming the door on thousands of applicants deprives them of the life, liberty or property without due process of law. Hence, there is the talk of a potential class action lawsuit against the U.S. government for accountability, and to require consistency and transparency in their dealings with the public. ©MurthyDotCom Congresswoman Zoe Lofgren's Writes to USCIS and DOS ©MurthyDotCom This fiasco has drawn national attention and continues to do so. Congresswoman Zoe Lofgren (D-CA) has written letters to Michael Chertoff, Secretary, U.S. Department of Homeland Security (DHS) and Condoleezza Rice, Secretary, U.S. Department of State (DOS). ©MurthyDotCom Congresswoman Lofgren is the Chair of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. She is a former immigration attorney and member of AILA, and, thus, has a substantial knowledge and background in U.S. immigration law. In her letters, she expresses her "deep concern" regarding the revision of the July Visa Bulletin, stating that "the Departments of State and Homeland Security have seriously undermined the stability and predictability of U.S. immigration law." ©MurthyDotCom Congresswoman Lofgren points out some of the legal deficiencies in the procedures that were followed by the DOS and the USCIS and lists some of the actions that were taken by individuals and businesses in their reliance upon the Visa Bulletin. The full text of Ms. Lofgren's letters is available on her website. We thank her for taking this action and for her support of orderly, lawful immigration. ©MurthyDotCom Individuals and Employers Suffered Substantial Damages ©MurthyDotCom We note that the list in Congresswoman Lofgren's letter, of actions taken in reliance upon the July 2007 Visa Bulletin, is quite similar to those experienced by clients of the Murthy Law Firm. These actions include: canceling foreign travel or abrupt arrangements to return to the U.S., expenses for medical exams and other supporting documentation, expenses for legal fees, travel for medical exams, time off from work, and the list goes on. We also know that our clients and others relied on the July Visa Bulletin to make strategic decisions in connection with their immigration matters that are now to their detriment. ©MurthyDotCom National Press ©MurthyDotCom The matter has also been covered in the national press. Articles appeared in the Washington Post and the New York Times. The articles cover several key points, for example, they include the fact that the actions of the USCIS impacted individuals and families who were following the rules and were doing everything legally. The Washington Post article raises the question of how the USCIS managed miraculously to use all the immigrant visa numbers that were remaining in mid June, when the July Visa Bulletin was issued - a figure given at 60,000 - within just a few weeks. ©MurthyDotCom Conclusion - What Does this Portend? ©MurthyDotCom With so much media coverage having been focused on illegal immigration until now, at long last the American public may gain some idea of just how much our valuable, LEGAL immigrants endure. The media spotlight is sometimes the only way to remedy the problems and failures of our government. We at the Murthy Law Firm appreciate the attention that this matter is finally attracting in the national media and among law makers. ©MurthyDotCom How this saga will conclude is uncertain, but it is unfair, in a democracy and in a country that prides itself on its openness, for the government to manipulate procedures, while wreaking havoc on people's lives. It undermines our legal immigration system and the orderliness upon which that system - and all of those relying upon it - depend. The story is still unfolding, and this appears to be only the tip of the iceberg. We at the Murthy Law Firm are supporting the immigrant community with updates and information on possible options. We will continue to post news on MurthyDotCom as it becomes available, since this matter affects so many of our readers.
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