The DOS has responsibility for regulating the flow of the statutorily-limited number of immigrant visas by imposing cut-off dates, when needed, based on the priority dates assigned to individual immigrant visa petitions.  On June 13, 2007, in a shocking and unprecedented move, the DOS made every employment-based immigration category "current" starting on July 1, with the exception of "other workers." When a category is listed as current, the beneficiary of an approved I-140 petition in that category is eligible to apply for permanent residence by filing an application for adjustment of status to permanent residence in the United States or for an immigrant visa abroad (or, in the case of adjustment applicants, the I-140 can be filed concurrently with the adjustment application).

The DOS stated in the July Visa Bulletin that it was making categories current in an effort to generate increased demand by USCIS for visa numbers for adjustment of status cases, and to maximize visa use under the annual numerical limit in FY 2007.   However, the agency also said that employment-based immigrant visa categories could possibly retrogress prior to the end of FY2007, if the rate of demand for numbers was very heavy in the coming months.

In a subsequent unprecedented move, the DOS issued an update to its July Visa Bulletin on Monday, July 2, 2007, stating that all employment-based immigrant visas have been used for FY 2007.   The DOS explained that, due to sudden backlog reduction efforts by USCIS during the past month, all immigrant visa numbers for employment-based I-140 immigrant petitions for FY 2007 have now been allocated.  Now that all employment-based immigrant visa categories are unavailable, the USCIS announced that beginning yesterday, July 2^, 2007,  it will reject all adjustment applications filed by foreign nationals whose priority dates are not current under the revised July Visa Bulletin.   This includes all applications for adjustment of status received by USCIS on July 2, 2007.  Relevant federal regulations prohibit the filing of an application for adjustment of status to permanent residence when there is no visa number available to the applicant.  An applicant's priority date must be current at the time of adjudication as well at the time of filing the adjustment of status application.

How Were the Visas Used so Quickly?

For reasons that are unclear, the USCIS greatly accelerated its adjudications after the DOS published its July Visa Bulletin on June 13, 2007.   There have been informal reports from multiple officials within USCIS that USCIS headquarters issued instructions to pull for adjudication every employment-based case that had been pending for more than six months, regardless of whether background checks were cleared.  USCIS offices report having worked all of the week-end of June 30, 2007 to comply with these instructions.  This was apparently to use up as many visa numbers as possible in order to try to cut-off receipt of new filings when most employment-based visa categories became current on July 1, 2007.   This information has not been officially confirmed by the USCIS headquarters office.

What Will Happen in FY2008?

Employment-based immigrant visa numbers will once again be made available beginning on October 1, 2007, under the FY 2008 annual numerical limitation, although there are likely to be cut-off dates for all countries in the third employment-based category, and in other employment categories for persons born in countries with historically high demand for immigrant visas, such as China and India.

The American Immigration Law Foundation ("AILF") is investigating the possibility of filing a class action lawsuit against USCIS in federal district court over its rejection of otherwise properly filed adjustment of status applications given that the DOS's July Visa Bulletin originally stated that visas would be available for the full month of July. While it has been suggested that plaintiffs and class members whose adjustment applications were rejected or returned would have the strongest legal claims, these types of actions are rarely successful, as federal regulations do not allow for the filing of adjustment of status applications when immigrant visa numbers are unavailable. For information regarding AILF's potential suit, please contact our office.        

How This Affects Employers

Employers are urged to continue to file I-140 petitions for eligible employees. Similarly, employees are encouraged to gather all documentation needed in support of their adjustment applications so that, on October 1, 2007, employees in eligible immigrant visa preference categories can file their adjustment of applications as soon as possible.   In mid-September, DOS will issue its Visa Bulletin for October 2007 setting out visa availability for the first month of the 2008 fiscal year.

We will provide further information as it becomes available.