The Visa Numbers that Never Were

By Attorney Robert L. Reeves and Joseph I. Elias

July was supposed to be a happy month for many. It was supposed to be a month in which employment-based immigrants who had been waiting patiently for many years would finally be able to apply for permanent resident status and obtain work authorization cards. Some would also able to travel, while others would be comforted knowing their children, who would be turning 21, would also be able to become permanent residents with their parents. This was supposed to happen because in June the State Department issued a Visa Bulletin stating that visa numbers would be current on July 1, 2007 for all employment categories except unskilled workers.

July 1 would mark the third quarter of the government’s fiscal. Immigration regulations require the government hold one-half of the yearly quota in reserve for release on July 1. This year, it meant that on July 1, approximately 60,000 visas should have been available for employment-based visas. Hence the State Department issuing a Visa Bulleting in June stating visa numbers would be current in July. But, on July 2, the first business day in July, the State Department issued a revised bulletin stating no visas would be available until October 1st. The USCIS also issued a notice saying it would reject all adjustment of status applications for employment-based cases until October 1st. The reserve was completely tapped. As the American Immigration Lawyers Association (AILA) put it, “Administration Slams Door on Thousands of Legal Immigrants: AILA Condemns Agencies’ Bait and Switch.”

This unprecedented action also raised the ire of Congress. Congresswoman Zoe Lofgren, of California issued a press release on July 3, 2007 stating she was, “deeply concerned by today’s updating of the July Visa Bulletin by the Departments of State and Homeland Security. By taking this unprecedented mid-month update, the Departments of State and Homeland Security have seriously undermined the stability and predictability of U.S. immigration law. Thousands of individuals and businesses rely on the monthly bulletins to prepare and plan for the submission of applications. In addition, thousands of dollars in legal fees and other application related expenses are incurred in preparation for filing applications based on the these monthly bulletins.”

Congresswoman Lofgren also sent letters to Secretaries Rice and Chertoff asking them to reconsider any mid-month updates of the July Visa Bulletin. In the interim, practitioners and immigrants alike, caught completely off guard, are gearing up for lawsuits on what may have been an illegal exhaustion of numbers and rejection of cases. AILA believes that the rejection policy is contrary to the Code of Federal Regulations 8 CFR §245.1(g)(1). The American Immigration Law Foundation (AILF) is also seeking plaintiffs for its lawsuit against the government.

There are rumors that the USCIS ordered adjudicators to work overtime and into the weekend of June 30 to specifically ensure that there were no visa numbers available for the month of July. Whether any of this is true or not, one thing remains clear, the current immigration system is seriously unreliable. Many applicants are still in shock after their hopes were raised and then dashed by the rescinding of the visa availability. The Visa Bulletin was too good to be true. The questions we keep hearing over and over again are, “Why?” and, “What now?”

The first question may take litigation and Congressional inquires to answer. The answer to the last questions is that we must unfortunately wait and see what visa numbers will be available in October.