Immigration Law Advisory - Effective July 2, 2007, Department of State Suspends Immigrant Visa Availability for Employer-Sponsored Aliens Seeking Adjustment of Status

Open Memorandum to Employer Sponsors of Foreign Nationals Seeking Adjustment of Status

Please read this message in its entirety.

On July 2, the Department of State ("DOS") which monitors visa availability, issued a bulletin announcing that, within the past few months, U.S. Citizenship and Immigration Services ("USCIS") exhausted all available visa numbers that had been allotted to employment-based categories for the 2006-2007 fiscal year.  Therefore, as of July 2, and until further notice, USCIS will not process any employment-based application for adjustment of status.  It also will reject and return applications mailed prior to today for aliens for whom an immigrant visa would become available on July 1, 2007.  The unavailability of visa numbers is expected to remain in effect until the 2007-2008 fiscal year which will begin October 1, 2007. We cannot predict what the cut-off dates for the various employment-based categories will be after October 1.  As you can imagine, this is a terribly frustrating development for immigration law practitioners and the clients we represent.  As we receive information regarding this development, we will forward it to you.

Your employees must continue to maintain their valid nonimmigrant status as they have done so far.  To that end, we will prepare and file timely petitions to extend their nonimmigrant status and we will offer advice and assistance regarding visa processing for your employees and their dependents.  Also, we are aware of and are prepared to address the status of employees who are approaching the mandated limits on their nonimmigrant status and will advise you accordingly.

American Immigration Lawyers Foundation ("AILF") is considering filing a lawsuit against USCIS over its rejection of otherwise properly-filed adjustment of status applications for the alleged reason that a visa was not immediately available, despite the initial July 2007 bulletin (published in June 2007) which indicated that visa numbers would be available for all employment-based adjustment applicants with the exception of one category ("EB-3, Other Worker") which is inapplicable to your employee(s).  As you may know, the DOS issues visa bulletins on a monthly basis. Therefore, the initial July bulletin should have been valid throughout all of July.  AILF is seeking plaintiffs to join its lawsuit.  In order to be a plaintiff, an alien must file an adjustment application and have it rejected by USCIS before the suit is filed.  This means that you and your employee(s) must determine whether you wish to incur the cost of preparing and filing an application that USCIS will reject outright.  We cannot decide this for you.  Also, if we do not receive the rejected application from USCIS by the time AILF files its suit, your employee may not have any recourse by which to benefit from any possible judgment in favor of aliens affected by this development.  AILF has not yet confirmed a filing date.  Therefore, if your employee(s) wish to join this suit, we must receive all of the documentation required to file their adjustment applications as soon as possible.  Please note that by joining the suit, the facts of your employee(s) cases will be disclosed to other attorneys and to the court.  

If the lawsuit is successful, USCIS should accept your employee(s) adjustment application and treat it as if it had been filed as of the date that you originally tried to file it. Because your employee(s)' application will then be considered to be "pending before the agency," your employee(s) and any dependents may be eligible for interim immigration benefits, including an employment authorization document and advance parole.
The lawsuit will not make a visa number immediately available if none is available.  If the visa numbers have in fact been used for the current fiscal year, the court does not have the authority under the law to make a new number available to your employee(s). However, if the court orders that USCIS accept your employee(s)' adjustment application as of the date that we originally tried to file it, your employee(s) will be at an earlier place in line if and when visa numbers become available again in the next fiscal year (October 1, 2007.)  

Please share this email with your employees who are affected by this development.  Also, please note that employees for whom an adjustment application was filed based on the availability of a visa number in June 2007 are not immediately affected by this development.  Their case cannot be processed while visa numbers are unavailable.  However, the application should not be rejected.  Please encourage your employees to refrain from sending individual correspondence to us so that we may attend to their cases in the appropriate manner.