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Immigration News Update

August 2007
Immigration News  Update

Devender Desai had been waiting three years to file his family's I-485 Applications for Permanent Residency. His children, all honor students in high school, would be denied scholarships and in-state tuition due to their status; his wife, on an H4, was unable to work; and he himself had a fear that his family would have to leave the U.S. if he lost his job. Due to the complicated system of visa backlogs and priority dates, he had to wait until his priority date was reached on the visa bulletin, released in the middle of every month by the Department of State. Only then could he submit their applications, although the underlying labor sponsorship petitions had been approved years ago.

On June 14th, potential immigrants and their families were overjoyed to find that the bulletin showed the majority of employment based visa dates as being "Current" – meaning anyone meeting the criteria (having an approved labor certification, for the majority of these cases) could immediately file their I-485s. Joyful pandemonium ensued, with thousands rushing to gather medical exams, birth certificates, etc. Many worked overtime to collect extra pay to cover the attorney and filing fees. Forms were prepared, and many, like Devender, cancelled plans to travel abroad for weddings and trips to see family so they could be present for the I-485 filing. Thousands of cases were FedExed on Saturday, June 30th for receipt at US CIS on July 2nd.

In a startlingly callous and unprecedented action, on July 2nd the DOS issued an "Update" of the July bulletin, stating that due to unexpected backlog reduction efforts at USCIS, no employment visas would be available for the remainder of the fiscal year. USCIS jumped to issue its own announcement, stating that it would reject any employment-based I-485s filed on July 2nd or thereafter. What made the situation more shocking is that USCIS went into overdrive when faced with an impending flood of I-485s, and requested 60,000 visas from the DOS in the 12 days preceding July 2nd, making its own employees work on weekends to ensure that it could prevent the many applications expected, and thereby thwart the joy and expectations of thousands of legal would-be immigrants.

To put the efforts by USCIS into perspective, the U.S. cannot allow more than 140,000 employment-based applicants in a fiscal year, which starts on October 1st. The DOS calculated that 60,000 visa numbers were available and unused as of June 2007. Meaning that in eight months USCIS had requested 80,000 visas. Then, in a two-week period, USCIS requested 60,000 visas! USCIS denied that employees worked over the weekend to use up numbers. However, DOS referred to "sudden backlog-reduction efforts" by USCIS to justify its amendment of the bulletin. USCIS later retracted the statement that they had not worked over the weekend, when there was direct evidence to the contrary. Furthermore, many speculate that USCIS was especially reluctant to accept these applications since filing fees increase substantially—by an average of 60 percent—on July 30th.

Outrage was registered on many fronts including Congress (hearings were scheduled), the immigration law community (which began preparing a massive class action lawsuit), and in the immigrant community itself which was able to quickly organize and protest in ways that have rarely been seen in the past. The first sign that the pressure was affecting USCIS was the leaking of information that USCIS's headquarters instructed centers to hold applications and await further instruction rather than reject them. After much negotiation, on July 17th USCIS took the extraordinary step of completely reversing its decision and issuing a statement that it would resume accepting applications until August 17th 2007. The DOS simultaneously released the August Visa Bulletin announcing that while all employment categories were unavailable, they were revoking the revised July Visa Bulletin and cases could again be filed pursuant to that earlier bulletin.

Despite this backtracking, USCIS has lost respect and credibility in the eyes of the communities it serves, as have members of Congress, the majority of whom remained silent. "Where are the politicians now?" Devender asked in the days preceding the July 17th announcement. "They claim that the problem with illegal immigrants is that they want benefits they don't deserve, but they won't step forward to help those of us who entered legally, stayed in status, and have been waiting patiently for our turn in line. And when our turn came, the government changed its mind." These legal immigrants, waiting their turn, are the best and brightest minds in the world. It would serve USCIS well to remember that its arbitrary actions may turn away these professionals and scholars, and affect the country's abilities to remain at the forefront of science, business, and technology.

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