OPINION: Visa Bulletin Debacle

by Elizabeth Brettschneider

Those of us practicing immigration law in the summer of 2007 experienced something that we thought would never happen again. The US State Department (DOS) released a Visa Bulletin that reported every employment-based preference category as “current.” This meant that everyone with an approved labor certification, no matter the prior backlog of priority dates, could file their adjustment of status (i.e. “Green Card”) applications with US Citizenship & Immigration Services (USCIS). Clients and attorneys cheered for joy and started preparing the paperwork. Clients who were abroad when the announcement was made flew back to the US (since an applicant has to be physically present in the US when applying for the adjustment). Clients got medical exams, paid for translations, paid attorneys, and everyone worked overtime to put together these numerous and extensive applications. And then…the State Department took the Visa Bulletin back! 

Our industry and our clients were incensed. A lawsuit was filed and finally the State Department caved and re-issued a Visa Bulletin allowing a one-month filing period for everyone eligible no matter the priority date. The chaos of the event was so remarkable that it became part of immigration practice lore.  I have said more than once to a client, “That would never happen again, they’ve learned their lesson.”  Alas…

It Happened Again

To set the scene, on September 9, 2015, USCIS, in coordination with the State Department, announced a new procedure for determining visa availability for applicants waiting to file for either employment-based or family-based adjustment of status. The new procedure involved an additional second chart to be included in the Visa Bulletin released by the State Department each month. This second chart features priority dates that are earlier than those on the original visa bulletin chart and enables applicants to file their adjustment cases with USCIS earlier than the date on which the Green Card would be available. The cases wouldn’t be adjudicated until their priority date was listed in the first chart, but the early filing of the case would allow for numerous benefits including work and travel permission for dependent spouses as well as for the applicants themselves.

Again, as in 2007, there were cheers. Attorneys met with clients, fees were paid, clients took vacation days to collect documents, and rushed to get their attorneys the requested information. Immigration attorneys worked long hours preparing applications, shuffling workloads, and answering questions about this brand new procedure in preparation for mass filings in October. Then suddenly, at 6pm on Friday September 25, 2015, just five days before we could mail in the applications, DOS took it back…again.

DOS released a significantly less favorable Visa Bulletin that replaced the previously-announced version. The second chart in the newly-released Visa Bulletin allowed for far fewer people to file their adjustment of status cases. For a vast majority of clients, all their hopes were dashed. 

Why Did This Happen?

Apparently it was a “gross government miscalculation" that caused this situation. It sounds like USCIS thought it wouldn’t be able to handle the expected large volume of filings for October. I can understand the logistical nightmare that mass filings would create for USCIS. What I don’t understand is why this could not have been figured out before the September 9th announcement. Why would they announce something for which they hadn’t already carefully planned? Almost as frustrating is the silence by USCIS when presented with all the lingering questions. The American Immigration Lawyers Association (AILA) sent a list of questions to USCIS about the situation. USCIS has declined to answer them. Apparently an FAQ has been promised but upon inquiring into a timeline for this, USCIS could not answer. 

People’s Lives Were Dramatically Affected

These are people’s lives! The people affected made and are making important life decisions based on government announcements. Clients whose spouses are on dependent visas who haven’t had the ability to work for decades are suddenly told they will be able to apply for their Green Cards and thus an interim work card. They make healthcare, childcare, professional, and travel decisions based on this information. (Never mind the attorneys who have to refund fees, restructure their case load, and try to answer difficult questions from clients.)

I am angry, as are many other immigration attorneys and foreign nationals. I think our administration should be ashamed by the harm that they have caused thousands upon thousands of foreign nationals. I probably shouldn’t be shocked that it happened again but I can’t help it. How could our government do this again? Immigrants coming from countries where the government can’t be relied upon shouldn’t be treated the same way by our government. 

And of course, I understand that USCIS grants the benefit and can determine how it does that but the problem is the apparent lack of thought in planning, clarity in execution, or understanding that their mistake impacted many lives negatively. We can only hope that USCIS learns from the situation and carefully considers all the outcomes in the future. Please don’t let history repeat itself for a third time.