1. I filed an I-485 and have been impacted by the DOS July Visa Bulletin’s reversal. What can I or my attorney do to alleviate this situation?
We understand that the sudden reversal of Visa Bulletin for July has been frustrating for tens of thousands aliens who applied or planed to file I-485s. Unfortunately, as of now, there is little you or your attorney can do to change the Visa Bulletin. However, in order to get a relief for those affected by the reversal of the Visa Bulletin for July, American Immigration Law Foundation (AILF) will file a class action litigation against USCIS. You can join the lawsuit and benefit from it if the lawsuit is successful.
2. What prompted the class action?
On June 13, 2007, the DOS released the Visa Bulletin that announced visa numbers for almost all categories of employment based immigration petitions as “current” for July 2007. Tens of thousands of immigrants planned to file their I-485s in July. Unexpectedly, on Monday, July 2, the DOS revised the Visa Bulletin for July, announcing that visa numbers for all EB categories for 2007 have been used up. Then, USICS announced it wouldn’t accept any new I-485s until October 2007, and it would reject I-485s received on July 2. Numerous immigrants will suffer from this event. AILF decided to file a class action lawsuit against USCIS over its rejection of otherwise properly filed adjustment of status applications, as the Visa Bulletin from the DOS stated that a visa was available in July, 2007.
3. What mistakes or mishaps did the DOS or USCIS make?
The miscommunication or lack of timely communications between the DOS and USCIS regarding the available visa numbers caused this unprecedented revision of Visa Bulletin. In June, 2007, the DOS made a too aggressive estimation of visa availability.
4. Who is AILF?
AILF stands for The American Immigration Law Foundation. This organization was established in 1987 as a not-for-profit educational and charitable organization dedicated to increasing public understanding of immigration law and policy. The organization strives to advance fundamental fairness and due process under the law for immigrants. It works closely with leading immigration experts throughout the U.S. In order to achieve these goals, AILF sometimes files lawsuits involving various aspects of immigration law, and many of these lawsuits were successful. For more information on the AILF, please visit: www.ailf.org
5. What is the relationship between AILF and AILA?
AILA is the American Immigration Lawyers Association. They are not affiliated to each other. AILA supports the AILF’s Legal Action Center and education programming for immigration law in order to increase member participation in advocacy for immigration-related interests.
6. What is a class action?
A class action is a procedural device used in litigation to determine the rights of and remedies, if any, for large numbers of people whose cases involve common questions of law and/or fact. The most prominent examples of past class actions include that for Agent Orange (from the Vietnam War) and the Tobacco Industry.
7. Which court will AILF file the class action?
The class action will be filed in a federal district court.
8. What does a plaintiff mean in a class action?
A plaintiff is a person who files a lawsuit against someone else. In a class action, a plaintiff is one of a group of people, known as the “class,” who is filing a suit against someone else. In this case, an I-485 applicant would become a plaintiff by joining this class action suit against USCIS.
9. Who can join the lawsuit?
Eligible plaintiffs for this lawsuit are still being determined by the AILF but are projected to include the following three classes of persons:
1) The first class of persons includes: a foreign national who:
a. Mailed an adjustment of status application in the “other worker” category for receipt by USCIS in June 2007 and USCIS received the application in June, 2007; and
b. Is otherwise eligible for adjustment of status; and
c. Did not receive a receipt notice, cancelled check, or notice of approval of the adjustment application
2) The second class of persons includes a foreign national who:
- Submitted an adjustment of status application in any employment-based category other than “other worker” for receipt by USCIS in July 2007; and
- Is otherwise eligible for adjustment of status; and
- Did not receive a receipt notice, cancelled check, or notice of approval of the adjustment application.
3) The third class includes a foreign national who:
- Would have submitted their adjustment applications for receipt in July, “but for” the government’s actions.
Note: Please be aware that the government may try to, or the court may want to treat this class differently from the class of people who submitted applications for receipt in July. In regards to this specific class, for those who have not filed, it may be in your best interest to file an I-485 even if you receive a rejection notice so that you may be included in this specific class for litigation. However, we will have to wait for further notice from AILF and/or AILA on what kind of routes should be taken for those of our clients who fall under this specific category of plaintiffs.
10. How may I join the AILF’s litigation as a plaintiff?
To join the AILF’s litigation as a plaintiff, you can visit www.ailf.org and fill out a short form and a retainer agreement to be sent to visabulletin@ailf.org. As of now, AILF has issued a statement that they have enough potential plaintiffs to satisfy a “class” for certification by the court and do not need any more potential plaintiffs at this point of time. However, do not worry about this statement. When the classes have been certified by the court, if your situation qualifies you as a member for any of the certified classes in this law suit, you will automatically be joined into the litigation upon your consent. You will most likely receive a notice from your attorney or AILF in the mail, specifically asking you to return a consent form to be included in the certified class for litigation.
11. Is there any negative effect on my case if I join the lawsuit as a plaintiff?
No. If an individual is otherwise legally entitled to have an application granted, the government cannot lawfully deny that application on the basis that the person is participating or participated in a lawsuit. From our past experience, this type of retaliation has not ever happened. Moreover, the number of plaintiffs is so big that the government will not be able to retaliate on them.
12. How many classes are in the class action?
As of now, eligible plaintiff categories have not been fully determined by AILF nor certified by the court. So far, there are three potential classes as listed in question 9.
13. How may I benefit from the AILF’s litigation?
If the lawsuit is successful, USCIS should accept your adjustment of status application and treat it as if it had been filed as of the date that you originally filed it or tried to file it. Because your adjustment of status application will then be considered to be pending, you may be eligible for interim benefits, including an EAD and Advance Parole, and others.
What the lawsuit will not do is to make a visa number immediately available to you if none is available. If the visa numbers have been used for the current fiscal year, the court does not have the authority under the law to make a new number available to you.
14. If the class action wins, may I get monetary damage?
Usually, the government is only liable for anyone in monetary damage if there is a bad faith action or gross negligence regarding the facts. There is a remote possibility; however, this will depend on the petition that AILF makes to the federal district court when they file the class action suit and the type of damages that they specifically request. In this case, damages will probably be in the form of an injunction as well as compensatory (monetary) damages.
15. What are the grounds that AILF may claim?
AILF will base their claim on the grounds that USCIS violated the law when it failed to apply the visa availability dates listed in the Visa Bulletin, as required by a federal regulation, and instead rejected properly filed adjustment of status applications. AILF will challenge the rejection of adjustment of status applications on this basis.
16. What are the government’s potential defenses?
The government may allege that there is no absolute duty to apply the visa availability dates listed in the Visa Bulletin. Furthermore, the government may argue that there is no obligation to immediately adjudicate an individual’s application. USCIS may argue that there is no visa numbers available to accept or adjudicate the I-485 cases in July 2007. Moreover, USCIS may argue as it did before that there is no specific statute or regulation that provides a time period in which USCIS must adjudicate an application.
17. How long will the litigation take?
It’s hard to know how long the litigation will take at this point of time, but it is expected to take at least one year. It is not easy and it takes time to prepare or litigate class action suits involving numerous people and numerous claims. AILF is working as quickly and efficiently as possible because of the urgency of these events for so many people. However, a quote on a time frame for class action litigation will not be available until classes have been certified by the court and dates have been set by the court for litigation.
18. Has USCIS returned or rejected the I-485 applications filed in July 2007?
As of now, USCIS has not formally rejected the I-485 applications filed in July and are holding them until further notice.
19. Is it possible that USCIS will accept the I-485 applications filed in July 2007?
It is possible. On July 16, Wall Street Journal reported that USCIS is very likely to accept SOME I-485 applications filed in July, 2007. However, it is unclear at this point of time whether USCIS will accept all applications filed in July, or only those received by USCIS on July 2. We’re also waiting for a further notice from USCIS. We will post the latest update on this regard at the first time it comes out.
20. Do I need to pay the attorney fees or any costs for the class action?
No, you don’t need to pay any expense to join the lawsuit. AILF pays all expenses related to the lawsuit except for your travel expenses to the court if you need to show up. Usually, as a beneficiary of the class, you do not need to show up.
21. How do I voice my concern and push for more immigrant visa numbers?
You may write to your Senators, and House representative to voice your concern over the current visa issue. Bring this to their attention and ask for a relief in the form of an effective immigration reform bill as well as for their support for AILF’s class action suit regarding this issue.
22. How many immigrant visa numbers are allocated per year for employment based immigration?
INA § 201 sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is 140,000.
INA § 203 prescribes preference classes for allotment of immigrant visas as follows:
First Preference Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second Preference Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third Preference: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".
Fourth Preference: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth Preference: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.
For the 140,000 employment-based immigration visa numbers, an individual country cannot use more than 7% of the total immigration numbers. Two countries have the most EB immigrants to the US: India and China. However, China or India cannot exceed 9,800.
23. How do I contact AILF?
You can contact AILF in the following ways:
- Email: info@ailf.org
- Snail Mail: 918 F Street, NW
6th Floor
Washington, DC 20004
(The article was written by Jeanneatte, Simon and Jerry.)
(07/16/2007)
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