Improper Denials of I-485 AOS on Priority Date Issue
Posted Mar 06, 2009
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Many MurthyDotCom and MurthyBulletin readers are personally acquainted with the series of events that occurred in July and August 2007, which came to be known as VisaGate or the Fiasco of 2007. It is often assumed that everyone recalls and understands this significant page in recent immigration history. Several incidents, however, have come to the attention of us at the Murthy Law Firm, indicating that some USCIS district office adjudicators are unfamiliar with VisaGate. This has led to the wrongful denial or questioning of cases filed in August 2007. The problem concerns visa number availability and the fact that the August 2007 U.S. Department of State (DOS) Visa Bulletin shows "unavailable" for all Employment Based (EB) categories. To the uninitiated, it appears as if no EB I-485s should have been filed during that period; when, in reality, a great many cases were properly filed until August 17, 2007.
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Summary of VisaGate - July / August 2007
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Even those who suffered through the Fiasco of 2007 may need a reminder of how these events unfolded. The short explanation is that the DOS issued the June 2007 Visa Bulletin in mid May, which moved many of the cutoff dates in the EB categories forward. This was an effort to avoid wasting visa numbers, by allowing the USCIS to approve enough cases. The DOS was not satisfied with the USCIS's pace, however, and in mid June issued the July 2007 Visa Bulletin that reflected all EB categories as "current." In reaction, and in an attempt to avoid having to accept an overwhelming number of I-485 filings, the USCIS got to work approving cases on an expedited basis and requesting visa numbers. This was all done in June, following the initial publication of the July Visa Bulletin. Thus, by the end of June, the excess visa numbers were exhausted. In early July 2007, the DOS issued a revised Visa Bulletin for July, which reflected unavailability in all EB categories. The USCIS issued an announcement stating that only cases that were current under the revised July Visa Bulletin would be accepted. This set off fireworks within the immigration community. After numerous public appeals, threats of class-action lawsuits, and congressional inquiries, the matter was resolved. On July 17th, the USCIS announced that filings under the original July Visa Bulletin would be accepted through August 17, 2007.
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Submit Documentation to Show Eligibility for I-485 Approval
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The Murthy Law Firm is making efforts to have this training issue addressed and, hopefully, the problem will be resolved. It is our suggestion, however, that anyone who is scheduled for an Adjustment of Status (I-485), interview go prepared. All MurthyDotCom and MurthyBulletin articles published during the Fiasco of 2007 are compiled for the convenience of our readers, so that they may gain clarity on that series of events.
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The key to this matter is that the I-485 cases filed in August 2007 were not actually filed based upon the August 2007 Visa Bulletin. Instead, they were filed based upon the July Visa Bulletin, which was extended. The USCIS announced this unusual procedure in an update on July 17, 2007. It may be helpful to take the announcement, as well as the initially-issued July 2007 Visa Bulletin, Number 107 to the interview.
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Following the announcement of the changed procedures, the USCIS issued further clarifications, discussed in our July 23, 2007 NewsFlash, USCIS Provides Favorable Guidance For I-485 EB Filing Issues. One important topic covered in the guidance is the appropriate filing fees. The filing fees changed on July 30, 2007. However, cases filed under the July 2007 Visa Bulletin (even if filed in August 2007) were not subject to the fee increase. Thus, if there are any questions about whether the proper fee was paid, this can be answered by the USCIS July 23, 2007 guidance.
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Conclusion
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There are sometimes matters assumed to be so basic that they do not need to be addressed. Given the complexity of immigration, new hires, and staff turnover, however, such assumptions may be erroneous. While the Fiasco of 2007 is still fresh in the minds of many of us as having been significant in the recent history of employment-based (EB) immigration, it did not impact other aspects of immigration. It also was less important for individuals in EB categories from countries of chargeability that are not retrogressed. If the examiner is familiar, as many are, then there is no reason to revisit this issue. To be on the safe side, however, individuals who filed their I-485s during the summer of 2007, and whose cases are referred to the local USCIS office for interview, should take the relevant documentation with them.
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