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State Dept. Moves Many Filing Dates Back From Previously Released October Visa Bulletin; Lawsuit Filed


On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The revised process allows foreign nationals who have immigrant visa petitions based on family or employment to file adjustment of status applications once their priority dates are listed on a separate chart on the monthly Visa Bulletin, “Dates for Filing Applications.” In the prior version of the October Visa Bulletin, these dates were significantly earlier than the priority dates available for final adjudications.

With the latest change for October, the Department of State moved the dates back substantially. In a statement announcing the change, U.S. Citizenship and Immigration Services explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted “to better reflect a timeframe justifying immediate action in the application process.”

The change means that potentially thousands of applicants who had already gathered documents, prepared applications, paid for medical examinations, and incurred other costs based on the previous dates now may have to wait many months to take the next steps in their green card cases, unless the situation changes. An informal survey of immigration lawyers revealed that about 80-90% of people who were eligible to apply for adjustment of status under the original Visa Bulletin were adversely affected by the changes announced by USCIS and DOS.

A class action challenging the new change was filed in the U.S. District Court for the Western District of Washington at Seattle on September 28, 2015. The complaint notes that in the absence of relief, plaintiffs and class members, “who have spent thousands of hours and millions of dollars preparing adjustment applications in reasonable reliance on the binding agency policy statements DOS published, will be irreparably harmed and left without any remedy for Defendants’ unlawful actions.” The complaint asks the court to declare, among other things, that the September 24 revision of the October 2015 Visa Bulletin constitutes unlawful agency action in violation of the Administrative Procedure Act. The Alliance of Business Immigration Lawyers (ABIL) filed a declaration supporting the complaint, and individual ABIL lawyers also filed declarations as experts. ABIL also plans to file an amicus brief in the litigation.

Below are a few examples of the extreme changes:

  • EB-2 China: Moved from 5/1/2014 to 1/1/2013 (1 year 5 months) 
  • EB-2 India: Moved from 7/1/2011 to 7/1/2009 (2 years) 
  • EB-3 Philippines: Moved from 1/1/2015 to 1/1/2010 (5 years) 
  • FB-1 Mexico: Moved from 7/1/1995 to 4/1/1995 (3 months) 
  • FB-3 Mexico: Moved from 10/1/1996 to 5/1/1995 (1 year 5 months) 

The Visa Bulletin indicates when immigrant visas are available based on priority date. The priority date is the date on which the applicant’s relative or employer filed the immigrant visa petition on the applicant’s behalf. In case of employer sponsorship through labor certification, the priority date is the date the labor certification was filed with the Department of Labor. Certain immigrants may also “recapture” earlier priority dates established by other immigrant visa petitions on their behalf.

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Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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