DOS, USCIS Reverse Policies, Release Guidance in Response to July Visa Number Debacle

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The Department of State and U.S. Citizenship and Immigration Services (USCIS) reversed themselves on July 17, 2007, to resolve the dilemma of tens of thousands of skilled workers who had been left out in the cold by the Department’s sudden announcement on July 2, 2007, that there would be no further employment-based green card numbers available until October.

In response to the controversy over the sudden cut-off, USCIS and the State Department reversed themselves. “The public reaction to the July 2 announcement made it clear that the federal government’s management of this process needs further review,” said Emilio Gonzalez, USCIS’s Director. “I am committed to working with Congress and the State Department to implement a more efficient system in line with public expectations.”

The July 2 announcement resulted in much outrage among workers, employers, and their attorneys, and lawsuits were filed and threatened. Rep. Zoe Lofgren (D-Cal.), whose district includes Silicon Valley, wrote to Homeland Security Secretary Michael Chertoff asking for “all correspondence, emails, memoranda, notes, field guidance or other documentation” leading to the sudden decision. Microsoft Corporation announced on July 5 that it plans to open soon a software development center in Vancouver, Canada, to “recruit and retain highly skilled people affected by immigration issues in the U.S.” S. Somasegar, corporate vice president of Microsoft’s Developer Division, noted that “Microsoft is a global company, and our greatest asset is smart, talented, highly skilled people. Our goal as a company is to attract the next generation of leading software developers from all parts of the world, and this center will be a beacon for some of that talent.”

After consulting with USCIS, the Visa Office advised that Visa Bulletin #107 (dated June 12, available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3258.html) should be relied upon as the July Visa Bulletin for purposes of determining employment-based visa number availability, and that Visa Bulletin #108 (dated July 2) has been withdrawn. USCIS announced that it is accepting employment-based applications to adjust status (Forms I-485) filed by aliens whose priority dates are current under Visa Bulletin #107. USCIS will accept applications filed no later than August 17, 2007. Those applications may no longer be filed electronically and must be submitted to a Service Center via regular mail or courier service, USCIS said. Applications already properly filed with USCIS also will be accepted. The current fee schedule will apply to all applications filed under Visa Bulletin #107 through August 17, 2007. The new fee schedule that became effective on July 30, 2007, applies to all other applications filed on or after July 30, 2007.

USCIS also subsequently released several FAQs containing detailed guidance, discussed below.

On July 27, 2007, USCIS released a FAQ (#2) on employment-based adjustment applications filed by those whose priority dates were “Current” under Department of State July Visa Bulletin No. 107. The FAQ makes the following points:

• USCIS will permit applicants who filed adjustment applications between July 2 and July 17, 2007, but who have not yet received a USCIS-generated receipt notice, to file for Advance Parole and Employment Authorization based on proof of delivery of the I-485 application.
  The receipt date for such applications will be based on the date the applications were physically received by USCIS.
• USCIS will accept medical examinations completed abroad by physicians authorized by the Department of State. Applicants must be physically present in the United States when filing for adjustment of status.
  An e-filed I-140 petition (that is not based on a required labor certification) filed on July 31, 2007, will receive a priority date of July 31, 2007, if the supporting documents arrive at a later date. In accordance with e-filing standard procedures, the date on which the I-140 petition is received by USCIS will be the priority date. Supporting documentation must be filed within allotted time limitations.
• A receipt notice from a courier service or overnight mailing service constitutes a “postmark” for fee determination purposes.
  For those who fell out of valid nonimmigrant status between July 2 and July 16, 2007, as a direct result of the inability to file for employment-based adjustment during that period, USCIS said it “has discretion to consider extraordinary circumstances that are beyond the alien’s control and may forgive a short gap in status for such aliens.”
• If an individual’s pre-August 1, 2007, priority date based on an approved labor certification and approved I-140 petition is transferred to a subsequently filed I-140 petition, the later filed I-140 petition may be concurrently filed with an I-485 application between August 1, 2007, and August 17, 2007. An approved I-140 petition on behalf of a beneficiary accords the beneficiary the priority date of the approved I-140 petition for any subsequently filed I-140 petitions on his or her behalf. Therefore, as long as the initial priority date remains current under Visa Bulletin No. 107, a subsequently filed I-140 and an adjustment application may be filed until August 17, 2007.
• If an alien has a pre-August 1, 2007, priority date based on an approved labor certification and a pending I-140 petition, the alien may not be accorded the earlier priority date on a subsequently filed I-140 petition such that the later I-140 and adjustment application may be filed between August 1, 2007, and August 17, 2007. In accordance with 8 CFR 204.5(e), only an approved I-140 petition on behalf of a beneficiary accords the beneficiary the priority date of the approved I-140 petition for any subsequently filed I-140 petitions on his or her behalf. A priority date may only be retained for use in conjunction with a subsequently filed Form I-140 petition if the previous petition was approved and not revoked. If the first petition remains pending, then the filing date of the labor certification submitted in support of the petition may not be used as a basis for a request to retain the priority date.
• The version date on the new I-485 form is 7/30/07 and it has an “N” designation after it, but this does not mean that the I-485 applications arriving at the Service Center on or after July 30, 2007, must use the new I-485 form or it will be rejected at the mailroom. The “N” designation on the new version was inadvertently uploaded to the USCIS Web site and has since been removed, USCIS explained. The new and corrected I-485 application form that will be uploaded will have the “Y” designation, which means that the earlier version of the form will not be rejected.
• All applications, petitions, and notices of legal representation must be properly signed. For more information, see the Reminder Regarding Signature Requirements, available here.
• A visa number must be available at the time of filing for adjustment of status. Thus, if a principal applicant with a current priority date under Visa Bulletin No. 107 files for adjustment of status between July 17 and August 17, 2007, any derivative family members must either also file during this time period, or wait until immigrant visa numbers become available at a later date pursuant to the Visa Bulletin.
• The correct filing fee for a concurrently filed I-140 with an adjustment application filed between July 30, 2007, and August 17, 2007, is $475. The new increased fee applies to Forms I-140, whether or not concurrently filed with an employment-based adjustment application, filed on or after July 30, 2007.

USCIS also released an earlier FAQ (#1) regarding the same topic. That FAQ makes the following points, among others:

• The fee of $180 for Forms I-765 and the fee of $170 for Form I-131 will remain in effect for those eligible to file an employment-based adjustment of status application pursuant to July Visa Bulletin No. 107. These fees will remain in effect for all such applications filed between July 17 and August 17, 2007.
• Applicants will not have the option of paying the new filing fees for adjustment applications. USCIS has determined that those in employment-based categories filing applications pursuant to July Visa Bulletin No. 107 should be subject to the pre-July 30, 2007, fees because that fee schedule would have applied had they been allowed to file throughout the month of July.
• USCIS will not accept employment-based adjustment of status applications under July Visa Bulletin No. 107 if the priority date is August 1, 2007 or later.
• USCIS will accept adjustment applications under July Visa Bulletin No. 107 that are submitted by August 17, 2007, if the priority date is before July 31 but the certification is granted after August 1.
• USCIS will accept properly filed Forms I-140 filed on behalf of beneficiaries with a priority date on or after August 1, 2007; however, pursuant to August Visa Bulletin No. 109, USCIS will reject any concurrently filed adjustment of status applications filed by those with a priority date on or after August 1, 2007.
• USCIS will accept adjustment of applications filed pursuant to Visa Bulletin No. 107 without a completed medical examination. In such cases, USCIS will issue a request for evidence.
• Applications delivered on August 17, 2007, will be accepted but those arriving August 18, 2007, will be rejected.
• USCIS interprets AC21 §104(c) (for three-year H-1B extensions) as only applicable when a beneficiary of an approved I-140 petition is eligible to be granted lawful permanent resident status but for application of the per-country limitations. Any petitioner seeking an H-1B extension on behalf of a beneficiary pursuant to AC21 §104(c) must thus establish that at the time of filing for such extension, the beneficiary is not eligible to be granted lawful permanent resident status on account of the per-country immigrant visa limitations.
• Depending on the volume of applications received as a result of the July 17 notice reopening the filing period for employment-based adjustment applications under the July Visa Bulletin, there may be some delay in the issuance of receipt notices. Processing times will be updated on the USCIS Web site.
• USCIS advises applicants filing a Form I-485 that does not contain a copy of an I-797 receipt notice for a previously filed Form I-140 to put a “brightly colored sheet of paper” on top of the filing with the following notice and information: “TO THE MAILROOM: The enclosed I-485 Adjustment Application(s) should be matched with a pending I-140 Immigrant Petition for which no Receipt Notice has been received. The Immigrant Petition [type, e.g., I-140] was delivered to [Service Center] on [date of filing and tracking number]; Petitioner’s name; Beneficiary’s name; Beneficiary’s date of birth; Beneficiary’s country of birth.”

For August, all employment-based preference categories are “Unavailable.” The Department said it is uncertain whether any numbers will be returned and can be reallocated at a future date. Until informed otherwise, the categories will remain unavailable until October, when the new federal fiscal year begins.

1. USCIS’s announcement is available here (PDF).
2. The August Visa Bulletin is available here.
3. FAQ #2 is available here.
4. FAQ #1 is available here.
5. Information on fees is available here.