From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our fifth post we will discuss executive action on the Department of State’s visa bulletin and the related controversy and lawsuit. 

Visa Bulletin Changes: USCIS Gets Involved

In October 2015, the Department of State (DOS) unveiled a significant change to its visa bulletin. The monthly bulletin outlining immigrant visa availability issued by the State Department has two charts: one showing cutoff dates that govern when visas can be issued, and a new chart containing cutoff dates for when applications can be filed. In addition, USCIS now provides information on its website regarding the eligibility of applicants to file applications for adjustment of status US permanent residency, and it cross-references the DOS charts.

Visa Bulletin Changes: Controversy Ensues

These major changes were spurred by recommendations contained in the Obama administration’s July, 2015 report, “Modernizing and Streamlining Our Legal Immigration System for the 21st Century”; in order to better estimate immigrant visa availability and provide needed predictability to nonimmigrant workers seeking permanent residency.

The new chart has been the subject of much controversy as it has seen an unexpected rolling back of the cutoff dates for certain Indian and Chinese immigrants, limiting the number of foreign nationals in those categories who are submitting green card applications. For Indian applicants, the dates were pushed back two years, and for Chinese immigrants, the dates were moved back 16 months. The result is that these immigrants in the EB-2 category will have to wait longer to file green card applications. Several other backlogged categories were also affected.

Visa Bulletin Changes: Class Action Follows Controversy

The unexpected change prompted a group of high-skilled immigrants to subsequently file a class action against the government. Plaintiffs are arguing that the State Department’s “abrupt rescission” of the October bulletin was arbitrary and capricious. Although they lost their bid for a temporary restraining order, the plaintiffs are pushing forward with a bid to certify the class, estimating that more than 20,000 Indian and Chinese nationals may have been harmed by the revised visa bulletin. The government, on the other hand, is seeking to dismiss the suit, claiming the court lacks jurisdiction and the suit’s claims are insufficient.