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Revised filing dates for foreign nationals seeking employment-based (EB) permanent residency has led to tremendous pushback from the immigration community and a class-action lawsuit against the government.
The U.S. State Department’s revised October Visa Bulletin, published Sept. 25, 2015, supersedes the previous iteration issued just two weeks prior and significantly scales back the filing dates for employment-based visa applications.
Specifically, filing dates for:
The actual priority dates for October were not changed.
The scaled-back dates come just two weeks after the State Department and U.S. Citizenship and Immigration Services (USCIS) announced Sept. 9, 2015, that the monthly visa bulletin would be updated to allow immigrants seeking employment-based green cards to apply for them years earlier than expected, providing access to employment authorization documents and travel and portability benefits that attach to pending adjustment of status applications.
Administration officials told the New York Times that they realized belatedly that they did not have enough green card visas, which are limited by yearly quotas, for all the immigrants they had allowed to apply for them.
“In a year where we have had many disappointments in employment-based immigration, many employees and their employers were happy to get a piece of good news with the original visa bulletin,” said Justin Storch, manager of agency liaison for the Council for Global Immigration(CFGI). Unfortunately, the good news was taken away almost as quickly as it was given, Storch said.
“In a time when this country has to compete harder than ever with the rest of the world for high-skilled workers, a confounding and sudden change such as this is unacceptable,” said U.S. Rep. Zoe Lofgren, D-Calif. “As a result, thousands of individuals and businesses that had relied on the original October bulletin have irrevocably lost thousands of dollars in legal fees and other expenses related to preparing and planning for their applications. Many have made life-changing decisions that cannot be undone.”
American Immigration Lawyers Association President Victor Nieblas Pradis called the government’s action “another huge letdown.”
“So many people spent time and money getting their applications ready to file and now they are told, due to government miscalculation, that they can’t file after all,” he said.
“This is further evidence of the need for Congress to reform our broken immigration system and provide relief to those employees that want to stay permanently, which [ultimately] helps employers innovate and create jobs here at home,” added Rebecca Peters, director and counsel for legislative affairs at CFGI.
On Sept. 28, 2015, a number of affected Chinese and Indian nationals filed a proposed class-action lawsuit against the Department of State, Department of Homeland Security and USCIS in federal court in the state of Washington.
The lawsuit charges that the visa bulletin change “constitutes arbitrary and capricious agency action contrary to law, as well as an abuse of the agency’s discretion, and violates plaintiffs’ due process rights.”
Next Steps for Employers
Employers must now reassess those employees who were eligible to file adjustment of status applications based on the original bulletin to identify any potential applicants who are no longer eligible to file, said Ian Macdonald, a shareholder in the Atlanta office of Greenberg Traurig and the firm’s business immigration and compliance practice group leader. “Any applications received by USCIS where the priority date is not current based on the revised bulletin will be rejected and returned.”
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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