Breaking News: July 3, 2007 - The Khosla Immigration Law ...



Breaking News: July 3, 2007

Concerning the revocation of the July 2007 Visa Bulletin by the Dept. of State and making “U” (unavailable) all EB categories from now until 10/1/2007

On July 2, 2007 morning, the Dept. of State announced as follows: “The sudden backlog reduction efforts by Citizenship and Immigration Services Offices during the past month have resulted in the use of almost 60,000 Employment numbers. As a result of this unexpected action it has been necessary to make immediate adjustments to several previously announced cut-off dates.  All Citizenship and Immigration Services Offices have been notified of the following: Effective Monday July 2, 2007 there will be no further authorizations in response to requests for Employment-based preference cases.  All numbers available to these categories under the FY-2007 annual numerical limitation have been made available. Employment preference numbers will once again be available to these chargeability areas beginning October 1, 2007, under the FY-2008 annual numerical limitation.” This announcement is posted at: )

Shortly thereafter, USCIS followed suit with its own announcement at: , essentially saying that they would not accept any I-485 cases filed in July 2007

These announcements have left the immigrant community and especially the employment based EB I-485 applicants in a state of shock and utter disbelief. This Counsel had clients that had driven from places as far as 500 miles to hand deliver medical exam reports on a Saturday and Sunday, and even flown in from far away locations to ensure that their documents would be made available to their lawyer for a timely I-485 filing especially after the rumors started circulating about a potential rapid use up of all EB numbers in early July 2007 1st week.

The legal community is also taken aback at this seemingly dictatorial approach taken by the Dept of State by summarily rendering unavailable, through a revocation of a previously issued Visa Bulletin, all EB visa numbers, for all countries. This is a clear and unprecedented departure from a long-standing policy of issuing 1 Visa Bulletin each month and adhering to it. People are shocked that there is no published mechanism for showing the public, how the Dept of State calculates these numbers and Priority Date retrogression calculations, and no oversight committee to review their actions and errors. It seems like a dictatorship has taken over this country of laws and regulations. And the long range impact of all this on the potential students contemplating coming to the US is still to be seen. This Counsel can envision that there will be that 21 year old be-spectacled Indian student who is in his 4th year of Engineering, thinking about coming to the US for an MS and PhD (this Counsel was one of them in 1983) thinking….Should I do to America? Will I be also be treated like this? Will I ever get my Green Card? How about applying to graduate schools in Australia, Canada, Britain, New Zealand? The world is looking at this. Its like a 50,000 strong line formed outside the Visa Office from June 14 to June 30 and on July 2 Monday the Dept of State essentially said….go home, we have nothing for you! This ham-handedness has been unprecedented.

This Counsel had filed numerous I-485 applications on Friday and Saturday (June 29 and June 30) for delivery Monday July 2, 2007 by FEDEX. A handful of I-485 applications were also filed SAME DAY FEDEX AND SAME DAY DHL for delivery Monday morning. Obviously the USCIS will reject these cases and send them back. Some of these cases were filed with I-140 approval notice copies and I-140 receipt notices, but others were filed with concurrent I-140 filings containing ORIGINAL Perm or RIR cases alien labor certifications. There are questions that need answers:

What will the USCIS do in these cases?

Will they strip the I-140 from the I-485 and process and issue receipts?

How soon?

How soon will USCIS issue rejections letters on unaccepted cases?

Should clients continue to file I-485 applications anyway?

Is there any benefit?

Will there be lawsuits filed against the USCIS, or US Dept of State or both?

Who will file them? Who will be the plaintiffs?

Will the Dept of State issue a revised Bulletin?

How could they all of a sudden determine on a Monday morning, after a weekend, that all the EB categories (even EB1 for Rest of the World Countries) are now UNAVAILABLE? Why? And where is the analysis?

Will the USCIS re-instate the Premium Processing for I-140s now that they are refusing to accept any I-485s and essentially no I-485 cases can be filed until 10/1/07?

Is there any way to compensate the effected I-485 applicants and reimburse them for the payment of last minute fees, medical exam costs, photos, airline tickets bought at last minute to fly H4 spouses and children into the US between June 15 2007 and now, in the effort to file I-485s.?

How long will the medical exams last? (usually good for 1 year)

A few minutes ago (July 3 2007 2:15 pm EST), AILA sent this email to this Counsel.

How Did All Those Employment-Based Numbers Get "Used" So Quickly?

Cite as "AILA InfoNet Doc. No. 07070363 (posted Jul. 3, 2007)"

AILA members have been receiving reports from multiple officials within USCIS indicating that USCIS HQ recently 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 weekend 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 came current on 7/1/07.

Note that this information has not been confirmed by USCIS HQ.

Another email from AILA to this Counsel on July 2, 2007

Should I File My I-485 Applications?

Cite as "AILA InfoNet Doc. No. 07070266 (posted Jul. 2, 2007)"

USCIS announced this afternoon that, effective today, it is rejecting all employment-based adjustment of status applications where the priority date is not current under the revised visa bulletin. USCIS Service Center Operations has advised AILA liaison that it will be rejecting ALL employment-based adjustment of status applications received beginning today.

So, Do I Keep Filing?

Many members have asked whether they should keep filing employment-based adjustment applications in light of today's announcement by the Department of State that there will be no further authorizations of visa numbers for employment preferences and the announcement by USCIS referenced above. This is, of course, a decision each applicant must make and each attorney must advise in his or her best judgment. However, following are some factors to keep in mind:

AILF's Legal Action Center is preparing to litigate. Plaintiffs and class members whose applications were rejected or returned would have the strongest legal claims and have the strongest claims to benefit from a favorable result.

Some case law indicates that where an applicant or their attorney did not apply or permitted the agency to "front desk" an application (turned the applicant away without evidence they had applied) those beneficiaries were not eligible for the remedies ordered by the court.

Clients have poured in emails to this Counsel asking what to do next.

Here are some thoughts by this Counsel:

People may or may not be aware that AILA ( ) is an association of over 10,000 Immigration Attorneys practicing in the United States. This Counsel is a Member of AILA. AILF is its litigating arm. AILF stands for American Immigration Law Foundation. This Counsel is a Member of the Board of Trustees of AILF.

AILA and its litigating branch AILF have been authorized to file a lawsuit against the USCIS in a Federal District Court over the USCIS’ rejection of lawfully filed I-485 applications on the grounds that a Visa Number was not available even though the July 2007 Visa Bulletin clearly states that it was available. In this lawsuit, AILF would most likely also sue the Dept of State (DOS) for issuing a second Visa Bulletin that revoked the first Visa Bulletin for July 2007 that was published on 6/14/07, without any advance notice or justification.

This Counsel will work with AILF to gather all necessary information and provide to AILF, a list of potential plaintiffs (this list will be well over a hundred plaintiffs whose I-485s were filed by this Counsel on July 2, 2007 and who will get rejection notices) This Counsel will be personally emailing clients to ask them if they wish to be added to this list.

There are clients who have just sent in their medical exam results to out law office. Their I-485 cases can be and should be filed in July (any time in July is OK…we don’t now have to rush and submit them this week) in order to obtain a rejection notice and establish a record. These names will then be forwarded to AILF for adding to a list of potential plaintiffs in CLASS ACTION LAW SUIT. A Class Action Law suit is a name for a lawsuit that is filed on behalf of multiple plaintiffs where the issue to be addressed arose from a single cause of action and there is a common remedy to be obtained.

What remedy? Well there can be money damages awarded for the expense that everyone undertook to gather documents, feeds, medical exams, transportation costs for relatives from abroad, costs of attorney fees, lack of AC21 portability, inability of spouse and dependents to get EAD and work and reh resultant financial harm.

Can the USCIS be forced to accept I-485s? Well, not if there truly are no EB visa numbers available in a given category. But they can be forced by the Courts to redress the monetary harm done to everyone that relied on the Visa Bulletin to file their I-485 cases. Likewise the AILA’s position appears to be that the Monday announcement of DOS is unlawful. The second Visa Bulletin that revokes the first Bulletin for July 2007 is unlawful. Likewise any actions taken by the USCIS in rejecting I-485s should be considered unlawful.

In this case, this Counsel will be advising his clients to file their I-485s regardless, with the expectation that the case will be rejected and we will document that fact that the cases were filed (by FEDEX) and returned / rejected and save the documentation and forward the same to AILF.

Note that the rejection would not harm the ability to re-file an I-485 when the PDs become current.

Also the mere filing and rejection of an I-485 does not impact the ability to seek an H1 or an L1 visa not does it impact someone’s pending H1 petition in the USCIS (new, transfer or extension)

Also upon rejection, USCIS should send all medicals, photos and USCIS Fee checks back.

This Counsel will keep posting new developments and is going to be contact each of his clients by email initially to update them individually and let them know of any actions on their already filed cases as well as requesting permission to file I-485s later this week after the 4th of July holiday.

This Counsel is advising clients to send in their I-485 materials. We will prepare the cases. We will do what is needed to fight for this just cause. Those clients that have not yet taken medical examination, don’t do it. We will file the I-485s without medicals at this juncture to preserve certain remedies that might flow at some point in the future.

Sincerely

Mike Khosla, ESQ



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See below, AILF’s questionnaire at for potential plaintiffs

Also see below, list of FAQs FROM AILF in response to common questions concerning a potential Class Action lawsuit against USCIS and USDOS.

Q: What is AILF?

A: The American Immigration Law Foundation (AILF) is a non-profit organization dedicated to protecting the rights of immigrants and refugees, and to securing fair and just application and administration of the U.S. immigration laws. In order to achieve these goals, AILF sometimes files lawsuits involving various aspects of immigration law.

Q: What is this lawsuit about?

A: This lawsuit will be filed by plaintiffs who have been harmed because USCIS rejected or returned, or is expected to reject or return, a properly submitted adjustment-of-status application for the alleged reason that no visa was immediately available, even though the DOS Visa Bulletin states that a visa was available at that time. Or, if there was a revised Bulletin issued showing unavailability, then, arguably, that revised Bulletin is not valid, since it violates long-standing policy and practice of the government.

To be eligible for adjustment to lawful permanent resident status, a foreign national must show that a visa number is “immediately available.” USCIS regulations state that the DOS Visa Bulletin is used to determine whether a visa number is immediately available. This Bulletin is published once a month and lists the visa availability dates for all categories of immigrants for the coming month. Thus, for example, the July 2007 bulletin, listing visa availability dates for the entire month of July, was published in mid-June 2007.

AILF has learned that USCIS has refused to allow certain adjustment-of-status applications to be filed in June 2007, even though the DOS Visa Bulletin states that visa numbers are available for the immigrant category at that time. USCIS rejected these applications because DOS informed it in an internal communication that no visa numbers remained for that category of immigrants. Until now, this had happened only in the employment-based “other worker” category in June 2007. This happened in a number of other types of employment-based immigrant categories beginning in July 2007.

We believe USCIS violated the law when it failed to apply the visa availability dates listed in the July Visa Bulletin, as required by a federal regulation, and instead rejected properly-filed, adjustment applications. Through this lawsuit, we will challenge the rejection of adjustment-of-status applications on this basis. We will ask the court to order USCIS to accept the rejected adjustment applications and treat them as being filed as of the date they originally would have been filed, had USCIS not rejected them. Also, AILF will likely argue that the revised Visa Bulletin violates the long-standing policy of the DOS and was issued without any notification to the general public, as required by the Administrative Procedures Act or APA.

Q: What is a “plaintiff” and how do I know if I am eligible to be a “plaintiff” in this lawsuit?

A: A plaintiff is a person who files a lawsuit against someone else. We are still determining the categories of plaintiffs, but an eligible plaintiff for this lawsuit may include:

A foreign national who is the beneficiary of an employment-based petition 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.

Q: Why should I be a plaintiff in this lawsuit?

A: If the lawsuit is successful, USCIS should accept your adjustment application and treat it as if it had been filed as of the date that you originally tried to file it. Because your adjustment application will then be considered to be pending before the USCIS, you may be eligible for interim benefits, including an employment authorization document, advance parole, and other potential benefits, like I-485 portability benefits, when eligible.

What the lawsuit will not do is make a visa number immediately available to you if none is available. If the visa numbers have, in fact, 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. However, if the court orders that USCIS accept your adjustment application as of the date that you originally tried to file it, you will be at an earlier place in line when visa numbers become available again when the next fiscal year begins on October 1, 2007. Additionally, as mentioned, you may be eligible for interim benefits like the EAD, AP and AOS portability, etc, while you are waiting.

Q: What is likely to happen because of the suit?

A: Lawsuits are uncertain by nature. We cannot predict the exact outcome. However, other efforts to resolve these problems with USCIS have not succeeded. For this reason, we believe that a lawsuit is the only remaining possible way to resolve these problems.

Q: Will being a plaintiff in this lawsuit hurt my chances for permanent residence?

A: If an individual is otherwise legally entitled to have an application granted, the government cannot lawfully deny that application on the basis that s/he is participating or participated in a lawsuit. If we believed the government was taking such action, we would complain to the lawyers representing the government and to the judge handling the case. In our experience, this retaliation has not happened.

Please be aware, though, that USCIS is likely to examine plaintiffs’ adjustment-of-status applications more closely than it otherwise might. It may ask the plaintiffs questions and ask for additional information about their adjustment applications or immigration status. See the following Q/A regarding “discovery.”

Q: How much time must plaintiffs spend on this lawsuit?

A: Plaintiffs will have to provide us with the information and documentation we need in order to prepare the lawsuit. AILF will do most of the work in the lawsuit on paper. Depending on how the case proceeds, the government and its attorneys may want to ask the plaintiffs some questions regarding their cases, either through written questions and answers or in person. This is called “discovery.” One type of discovery is a “deposition,” which is an interview where parties are asked questions about their cases.

Depositions are possible but not common in this type of case. In the event that discovery and/or depositions were required, an AILF attorney or an attorney working with us would assist plaintiffs to comply with any discovery requests, and would appear with plaintiffs at any deposition at no charge (see below). At a later stage, a plaintiff may be required to be present at a hearing or a trial and possibly be asked to testify about her/his particular case, but this is quite rare.

Q: Will it cost me anything to be a plaintiff in this lawsuit?

A: AILF and any co-counsel will not charge any attorney’s fees for representing individuals in this lawsuit. AILF and any co-counsel also will pay the costs and expenses associated with the lawsuit, such as filing fees*, copying, long distance calls, travel expenses for AILF attorneys and staff, depositions, transcripts, etc. In the unlikely event that an individual should be required to be present at a deposition, hearing or a trial, we may ask that s/he pay his or her own travel and lodging expenses, if any. Those expenses would be reimbursed if the lawsuit is successful and we recover costs. ( * this is about the lawsuit only).

Q: Will anyone know that I am a plaintiff in this lawsuit?

A: Lawsuits are public information and are available as public court documents. Many courts now have lawsuits and other documents available electronically, accessible via the Internet. Also, USCIS will, of course, know the identity of the plaintiffs. We also will discuss plaintiffs’ cases with any other lawyers working with us on the lawsuit. It is possible that the media - newspapers, radio, or TV reporters - will see the court documents and decide to report on the lawsuit, as well.

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