On September 28, 2015, several highly-skilled immigrant workers from India and China filed a federal class action lawsuit in the State of Washington against the U.S. Department of State (“DOS”) and U.S. Department of Homeland Security (“DHS”) over revisions to the October 2015 Visa Bulletin (Revised Visa Bulletin) that impacted them adversely.  On September 30, an amended complaint was filed in federal court along with an emergency motion for a temporary restraining order, asking the court to order DHS to accept all Adjustment of Status applications  that could have been filed under the Original Visa Bulletin published on September 9.

On October 7, 2015, the court denied the plaintiffs’ request for a temporary restraining order because the plaintiffs failed to show a likelihood of success on other grounds, and because the Revised Visa Bulletin did not substantially alter the plaintiffs’ rights.  According to the court, the Revised Visa Bulletin only clarified a prior incorrect statement of their rights.  The immediate effect of this decision is that the Revised Visa Bulletin will remain in effect and DHS will not be required to accept Adjustment of Status applications that could have been filed under the Original Visa Bulletin but not under the Revised Visa Bulletin.   The underlying lawsuit, however, is still ongoing.

The Revised Visa Bulletin, published on September 25, had adversely impacted natives of China, India, and the Philippines in several  employment-based green card categories.  Specifically, the Revised Visa Bulletin rolled back filing eligibility for EB-2/India by 2 years; for EB-2/China, eligibility rolled back by approximately 16 months; and for EB-2 and EB-3 Philippines, eligibility rolled back by 5 years.  As a consequence, thousands of immigrants who were eligible to file their adjustment of status applications under the Original Visa Bulletin were no longer eligible under the Revised Visa Bulletin.  We discussed this regrettable and sudden revision previously.

In their suit, the Plaintiffs assert that the DOS’s sudden changes to the Revised Visa Bulletin—just five days before the Original Visa Bulletin was to take effect on October 1—constitutes “arbitrary and capricious” agency action in violation of the Plaintiffs’ due-process rights and the Administrative Procedure Act, and served as an abuse of agency discretion.  In support of their claims, the Plaintiffs assert that publishing the Revised Visa Bulletin just days before it was to take effect did not provide “adequate notice” to them.  In response to the Original Visa Bulletin published on September 9, thousands of eligible immigrants expended “significant time and resources with the reasonable expectation that [DOS] would follow its” longstanding practice of honoring the Original Visa Bulletin.[1]  The Plaintiffs also assert that visa bulletins have never been permanently revised after initial publication, therefore making their reliance on the Original Visa Bulletin reasonable.

Between September 9, and September 25—the date the Revised Visa Bulletin was published—many eligible immigrants incurred significant costs obtaining required medical examinations and document translations, and paying legal fees to attorneys to assist with preparing their applications.  Because the Revised Visa Bulletin cut off eligibility for a significant number of immigrants, however, these incurred costs may now be wasted.  Under the Revised Visa Bulletin, the Plaintiffs and thousands of other previously eligible immigrants can no longer file their Adjustment of Status applications.

The White House discussed revamping the Visa Bulletin in July 2015 to better estimate visa availability for prospective immigrants who desire greater predictability and stability in their pursuit of green cards.  A significant benefit to the Original October Visa Bulletin was that it increased the eligibility pool of immigrants to file their adjustment of status applications so that eligible immigrants could obtain independent work authorization that would allow them to change positions or employers.  Obtaining their green cards, or least being able to file their adjustment of status applications, would also afford greater stability to immigrants by allowing them to remain in the United States and begin to establish permanent ties.  The Revised Visa Bulletin throws these benefits into flux for previously eligible immigrants, and leaves them in doubt on when they will again become eligible to file their Adjustment of Status applications.

A similar breakdown in intra-agency communication between the DOS and USCIS took place in July 2007, when the DOS announced in the Visa Bulletin that visa numbers were available to certain categories of skilled workers (making them eligible to file Adjustment of Status applications), only for USCIS to insist on a revision of those dates a few days later.  In 2007, under the pressure of Congress and the threat of lawsuits, USCIS ultimately agreed to honor the visa availability dates in the original visa bulletin allowing the originally eligible applicants to file their Adjustment of Status applications.  We are seeing the same public uproar and threat of lawsuits now as we did in July 2007.  For those applicants who have already incurred costs in reliance on the Revised Visa Bulletin, we recommend that they hold onto any documents that they have already obtained, in particular the medical examinations, in the event that the DOS and DHS cave to public pressure and honor the eligibility dates for filing as stated in the Original Visa Bulletin issued September 9.