Lawsuit Challenging Visa Bulletin Revision Dismissed

In an order dated May 16, 2016, the U.S District Court for the Western District of Washington has dismissed the lawsuit challenging the October 2015 Visa Bulletin revisions, or the so-called “visagate.”    According to the court, the visa bulletin, mainly because it had not become effective at the time of the revision, did not constitute final agency action and, as a result, the court dismissed the case on technical grounds without an opportunity to amend the claims stated.

Brief “Visagate” Background

The Initial October 2015 Visa Bulletin

With the October 2015 Visa Bulletin released initially on September 9, 2015, the Department of State (DOS) introduced a two-tier cutoff system which was intended to allow applicants from oversubscribed countries and categories to possibly advance their immigrant cases even when there may not be a visa number available to them.

The “Application Final Action Dates” tier (which was consistent with prior Visa Bulletins) was the cutoff date which would determine when a pending I-485 or NVC/Consular immigrant case can be approved.   The idea was for DOS to be able to track much more closely the use and availability of visa numbers so that the “Application Final Action Date” would reflect a more accurate date as to when a green card can be approved.

The major change introduced in the initial October 2015 Visa Bulletin was the introduction of “Dates for Filing Visa Applications” cutoff date.  This was intended to be used by USCIS to indicate that there are more immigrant visas available for the fiscal year than there are known applicants for such visas.   When this was going to be the case, the Visa Bulletin would indicate a cutoff date for Filing Visa Applications which is earlier (by few years in many cases) than the “Application Final Action Date” and this would allow those applicants whose priority date earlier than the applicable Filing Visa Applications date to prepare and file their I-485 application.

What the October 2015 Visa Bulletin did was indicate that the “Filing Dates” would advance significantly starting from October 1, 2015; as a result, many applicants (mostly EB-2 India) understood that they will be able to file their I-485 applications and, as a result, started preparing their I-485 cases (including hiring attorneys, completing medicals, and otherwise gathering case documents).

The Revised October 2015 Visa Bulletin

On  September 25, 2015, and less than a week before the October 2015 Visa Bulletin to become effective, the Department of State issued an immediate revision to the October 2015 Visa Bulletin where the “Filing” cutoff dates were revised backwards for few categories, EB-2 India, among them.    As a result, the thousands of possible I-485 applicants were left without an opportunity to file I-485.

The Visagate Lawsuit

The lawsuit was brought on September 28, 2015, seeking class action certification, and asking, primarily, the Department of State to reinstate the initial October 2015 Visa Bulletin.

Visagate Lawsuit Dismissed

In its May 16, 2016 order, the Court dismissed the lawsuit reasoning that the issuance of the Visa Bulletin does not constitute final agency action (presumably because it can be amended before it became effective on October 1) and, as a result, cannot be challenged in the way the lawsuit was filed.   As the court wrote,

[T]the two Visa Bulletins are not “definitive statements” but informative statements; the September 9, 2015, Visa Bulletin did appear to have a direct and immediate effect on the day-to-day business of Plaintiffs; the Visa Bulletins did not have the status of law, if at all, until October 1, 2015; immediate compliance with the terms of these Visa Bulletins was clearly not expected; and the Visa Bulletins did not necessarily answer a legal question. These indicia of finality support the Court’s conclusion that the two Visa Bulletins in question do not constitute final agency action.

Finally, the Court determined that because all of the facts so far have been presented by both parties and because the dispute is solely a matter of law, the case should be dismissed with prejudice, meaning that there is no opportunity to amend and try to proceed with this same lawsuit.

What Should We Expect After the Visagate Lawsuit Dismissal?

The dismissal means that the initial October 2015 Visa Bulletin reinstated will not be reinstated and we will simply have to continue to rely on the Visa Bulletin system, as it currently exists.    It should be noted that the two-tier cutoff date system continues to exist in every Visa Bulletin after October 2015; however, USCIS has refused to accept any of the more-advanced “Filing Dates” for the purpose of filing I-485 applications.

Over the last several months we have seen notable reluctance by the government to comment on any of the aspects of the two-tier cutoff date system where government officials cite the then-pending litigation.   With the litigation out of the way, we are hoping to get more clarity from the government (DOS and USCIS) about the future of the Visa Bulletin and the movement of the cutoff dates on a mid- and long-term basis.      We are also hoping that USCIS will be able to work with DOS to take advantage of the “Filing Dates” cutoff category in order to allow at least some applicants to file I-485s.

Conclusion

While we understand that some, especially EB-2 India, applicants will be disappointed with the dismissal of this lawsuit,  we are hoping that with the lawsuit out of the way,  there will be a way to make the cutoff date system more predictable to the thousands of applicants who are waiting for a visa number or an opportunity to file I-485s.   Our office will work with agencies and officials here in Washington, DC and provide updates on any developments.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the Visa Bulletin.