Only Time Will Tell Over Oct. Immigration Visa Bulletin
by Foster, on News
On Sept. 9, 2015, the U.S. Department of State published an historic visa bulletin for October 2015, which would have allowed a higher-than-anticipated number of employment-based applicants from India and China to file their green card applications on Oct. 1. On Friday, Sept. 25, the State Department revised the visa bulletin such that far fewer would become eligible for filing on Oct. 1. This action prompted a lawsuit seeking an injunction that would force the State Department to reinstate the original bulletin published on Sept. 9.
The federal government responded by claiming the desired remedy would violate the Immigration and Nationality Act. Since then, the immigration bar, professional associations and advocacy groups have asked members of Congress to urge the State Department to reinstate the Sept. 9 version of the bulletin, and multiple petitions were started to ask the Obama administration to revert to the previous version of the bulletin.
What’s the Visa Bulletin?
The visa bulletin is the State Department publication that notifies applicants for U.S. permanent residency when an immigrant visa is “immediately available” for them under the annual immigrant quota. Immediate availability is a statutory requirement for filing an “Application to Adjust Status to U.S. Lawful Permanent Resident” (i.e., a green card application), the final step in the permanent residency process.
The annual immigrant quota is divided by preference category and country of birth and is allocated so that applicants from no single country of birth may use more than 7 percent of the quota. Because employment-based applicants born in China and India annually exceed this 7 percent limitation, immigrant demand exceeds visa supply and lines form. Both country of birth and immigrant preference category determine an applicant’s queue, and his “priority date” establishes his place in it. An applicant may file his green card application when his priority date is earlier than the date published for his immigrant category and country of birth in the monthly visa bulletin.
Each fiscal year, and each month within the year, the State Department estimates demand against the quota and determines how to allocate visas each month in order to ensure that every visa is used, and that no visas are issued in excess of the quota. This process involves estimating the number of applicants waiting to file their applications and projecting how many visas might remain unused for a particular country of birth and preference category, so that those visas may be used for other categories. The monthly visa bulletin publishes the outcome of these estimates.
Each month’s visa bulletin is published during the second week of the prior month. Applicants have this advance notice to collect required documents, engage legal counsel and otherwise take steps to file their applications the following month.
What’s Historic About the October 2015 Visa Bulletin?
Before the October 2015 visa bulletin, the State Department published a single “cutoff date” per immigrant category and country of birth that represented the date before which an applicant’s priority date must fall in order to file his green card application, or have it approved.
For the first time, the October 2015 visa bulletin introduced two separate cutoff dates, a “filing cutoff” date and a “final action” date. Respectively these dates would represent the date before which an applicant’s priority date must fall in order to file an application to adjust status, and then to have it approved. The State Department developed this bifurcated format in response to President Obama’s call for a revised visa bulletin that would better estimate visa availability and provide greater predictability to those waiting in line to file their applications.
Under the Sept. 9 version of the visa bulletin, a second preference applicant (“EB-2”) born in India would had to have had a priority date earlier than July 1, 2011, in order to file his green card application. He and his family would have been eligible to file concurrent applications for employment authorization and travel documents. Additionally, 180 days after filing, he would have become eligible to change employers within his same or a similar occupational classification without undergoing a new permanent residency process.
In preparation for filing, applicants hired lawyers, obtained medical examinations and vaccinations, ordered vital records from halfway around the globe and obtained six to eight passport photos for each family member. The average size family easily might have spent thousands of dollars preparing to file their applications in reliance on the Sept. 9 version of the visa bulletin.
Visa Bulletin Revision Rolls Back Filing Eligibility
On Sept. 25, the October visa bulletin made history for another reason — the State Department changed the filing cutoff date for the EB-2 India category from July 1, 2011, to July 1, 2009, a full two years earlier. Instead of becoming eligible to file applications 4.5 years after starting the permanent residency process, applicants would only become eligible on Oct. 1 if they had started the process 6.5 years earlier. Overall, thousands of applicants and their families were impacted by this nearly unprecedented revision to the visa bulletin.
Plaintiffs filed suit against the State Department on Sept. 28, seeking an injunction that would force the government to begin accepting applications on Oct. 1 in accordance with the original version of the October visa bulletin. Plaintiffs assert they reasonably relied on the original version of the visa bulletin, incurring significant expenses preparing to file their applications. Their complaint alleges that the visa bulletin has regulatory effect, that the government acted arbitrarily and capriciously and in violation of the Administrative Procedures Act when publishing the revised bulletin, and that the government violated the Fifth Amendment’s Due Process Clause by depriving plaintiffs of adequate notice of an agency action that would impact their rights under the law.
The government responded by arguing that the plaintiffs were not entitled to rely on the visa bulletin because it would not confer any rights until the Oct. 1 effective date. Additionally, the government insisted that the dates published in the original bulletin “did not accurately reflect visa availability for [the U.S. Department of Homeland Security‘s] purposes of accepting applications consistent with 245(a)” of the INA, and that the government does not have the statutory authority to accept applications filed in reliance on the original dates.
What Does “Immediately Available” Mean?
Under Section 245(a) of the INA, an applicant is only eligible if “an immigrant visa is immediately available to him at the time his application is filed.” Some practitioners interpret “immediate availability” to mean that the individual could be approved for permanent residency and issued a visa immediately upon filing but for the process of adjudication. Accordingly, some practitioners questioned the legality of the new, bifurcated format of the visa bulletin, suggesting a separate filing cutoff date would result in applicants filing before an immigrant visa was available to them.
Other practitioners, most notably Cyrus Mehta, have put forward an interpretation of “immediately available” that involves a system whereby applications may be filed so long as there is even one visa remaining in the preference category. In other words, “immediately available” doesn’t require that there be enough visas available for every applicant allowed to apply, but only that there be a visa available in the preference category. Under this interpretation, if the putative last visa is never used, there would always be a visa immediately available, and qualified applicants would always be able to file their applications. There would never be lines for filing, only for final approval. 
At odds with both of these interpretations, the October visa bulletin appears to define “immediately available” based on government expediency. The government seems to consider visas immediately available for applicants who could be issued a visa within roughly eight to 12 months, a time frame that the DHS suggests would warrant immediate government action to adjudicate an application.
The government’s stated position that it would be unlawful to reinstate the original visa bulletin due to lack of immediate availability appears to gloss over the fact that even the revised Sept. 25 version of the visa bulletin would appear to violate the same statutory requirement. The legal justification for allowing filings eight to 12 months, but not 13-plus months, in advance of actual visa availability remains elusive. The government’s arguments do not adequately address this issue, though some justification may emerge in the course of litigation.
Predicting the Outcome
There is no precedent to suggest the outcome of the current litigation. The only other time the government issued a revised visa bulletin was in July 2007, two daysafter it had become effective and applicants had already submitted their applications. The government ultimately succumbed to pressure and reinstated the initial version of the July 2007 bulletin.
At the time of this writing, the government shows no signs of capitulation, and plaintiffs are pressing their case of reasonable, detrimental reliance. The court has denied plaintiffs’ motion for a temporary restraining order asking that the Sept. 25 version of the visa bulletin be enjoined. Perhaps publication of the revised October bulletin prior to its effective date coupled with the high standard for obtaining an injunction mandating government action will be enough to carry the day for the government. But even if the government wins, few outsiders will argue the government was “right”.
—By Delisa J.F. Bressler, Foster LLP
DISCLOSURE: The author’s firm represents clients impacted by revisions to the October visa bulletin, though none are party to the current litigation. One of the firm’s partners is a member of the Alliance for Business Immigration Lawyers, which submitted a sworn declaration in connection with the current litigation. Foster also joined other firms and organizations in signing a letter to the secretaries of the State Department and DHS urging reinstatement of the original October visa bulletin.
Delisa J.F. Bressler is a partner in Foster’s Austin, Texas, office.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. Chintan Mehta, et al. v. United States Department of State, et al., Case No. 2:15-cv-1543-RSM. Plaintiffs have also requested a temporary restraining order that would require reinstatement of the original version of the bulletin.  Defendants’ Opposition to Plaintiffs’ Motion for Temporary Restraining Order, Chintan Mehta, et al. v. United States Department of State, et al., Case No. 2:15-cv-1543-RSM.  8 U.S.C. 1255(a)(3).  The employment-based permanent residency process is normally a three-step process that involves U.S. Department of Labor certification, an immigrant visa petition and a final green card application.  8 U.S.C. 1152(a)(2).  Lines form for applicants born in other countries as well, such as Mexico, Philippines, and for some immigrant categories, all countries of birth.  An applicant’s “priority date” is the date on which a “PERM” Application for Permanent Employment Certification (i.e., “labor certification”) was filed on his behalf, or if no labor certification is required for the preference category, the date that the I-140 Immigrant Visa Petition was filed.  Applicants outside the United States may have their immigrant visas issued at a U.S. embassy or consulate abroad.  The federal government’s fiscal year runs from Oct. 1 through Sept. 30.  Although the necessary formulas and algorithms are probably complicated, at an elementary level the State Department’s estimating process avoids hoarding visas under the first preference category for persons born in countries with few immigrants to the U.S. when those visas might be used for other countries of birth and preference categories.  See Modernizing & Streamlining our Legal Immigration System for the 21st Century, a White House report published in July 2015. In hindsight, it appears the government failed to achieve this particular goal.  Chinese, Mexican and Philippine-born applicants under certain other categories experienced similar setbacks.  Some may recall similar action by the State Department and U.S. Citizenship and Immigration Services eight years ago in 2007, when the State Department issued a revised July 2007 visa bulletin on July 2. In that case, under outside pressure and the threat of litigation, the State Department rescinded the revised bulletin and reinstated the original July 2007 bulletin. The facts in this case are eerily similar, but not a precise match to the circumstances in July 2007. In July 2007, the State Department waited until the second day of July to issue the revised July bulletin. Some applicants had already mailed in their applications with medical examinations, several passport photos per applicant and filing fee checks. In the current case, the State Department published the revised October visa bulletin before the first day of October.  Chintan Mehta, et al. v. United States Department of State, et al., Case No. 2:15-cv-1543-RSM. Plaintiffs also sought a temporary restraining order, but the order was denied.  Defendants’ Opposition to Plaintiffs’ Motion for Temporary Restraining Order, Chintan Mehta, et al. v. United States Department of State, et al., Case No. 2:15-cv-1543-RSM.  8 U.S.C. 1255(a)(3).  Cyrus Mehta described the proposal in a sworn statement filed as Exhibit F to the emergency motion for temporary restraining order in Chintan Mehta, et al. v. U.S. Department of State, et al., filed Sept. 30, 2015, with the U.S. District Court for the Western District of Washington. Mehta co-authored the proposal with Gary Endelman, who left the practice of immigration law to serve as an immigration judge.  This interpretation emphasizes the fact that a visa remains available under the category but seems to gloss over the phrase “to him” when reading the statutory requirement that “… an immigrant visa is immediately available to him at the time his application is filed.” However, it seems the government does not categorically deny Mehta’s concept, as even the revised visa bulletin must necessarily rely in part on its reasoning.  This period of time has since been defined as eight to 12 months in the sworn statement of Charles W. Oppenheim, submitted as Exhibit A to the government’s brief in opposition to the emergency motion for temporary restraining order.