Copland and Brenner

Table of Contents

1. Reversal of Fortune: USCIS Proves it - Summer is for Flip-Flops

1. Reversal of Fortune: USCIS Proves it - Summer is for Flip-Flops

   After tumultuous events of early July involving employment-based immigrant visa numbers, it seemed matters could not become more unforeseeably changeable, or more bizarre, than we reported last month. But then, the cycle of changes since mid-June has arrived in installments, and it was still early July. Considering the multiple changes in fees, forms, filing locations, newly issued FAQs, and other fluctuations in formerly foreseeable practices and procedure – plus a “floral protest” - over the past six weeks, no one should wonder if heads are spinning faster than Linda Blair’s famed Regan MacNeil character in The Exorcist . Summer is for flip-flops – and, it turns out, not only for the feet.

   Background: As we reported in our July edition of Immigration News , based upon information in the Visa Bulletin of June 12, 2007, prospective adjustment of status applicants across the country prepared to pounce on the opportunity to file during July, since all employment-based categories (except Other Workers) would be current. However, events of July 2 and the days leading up to it involved highly unusual (some say suspicious) activities regarding processing of employment-based immigrant visa petitions and associated adjustment of status applications. The upshot was that rather than beginning to accept such filings on July 2, U.S. Citizenship and Immigration Services instead stated it would reject the petitions and applications received on that day and going forward, based upon an unprecedented “interim” Visa Bulletin issued on July 2.

   The American Immigration Law Foundation (“AILF”) responded by threatening to file a class action lawsuit. Many immigration practitioners, as well as member organizations, alleged that the unusual events were caused by a USCIS desire to collect higher fees that would apply to the same filings after July 30. Representative Zoe Lofgren (D-CA), Chairwoman of the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, & International Law, issued the following statement: “I’m deeply concerned by today’s updating of the July Visa Bulletin by the Departments of State and Homeland Security. By taking this unprecedented mid-month update, the Departments of State and Homeland Security have seriously undermined the stability and predictability of U.S. immigration law. Thousands of individuals and businesses rely on the monthly bulletins to prepare and plan for the submission of applications. In addition, thousands of dollars in legal fees and other application related expenses are incurred in preparation for filing applications based on the these monthly bulletins. This update sets a terrible precedent, and undermines our nation’s efforts to foster legal and orderly immigration.”

   By July 6, the Department of State posted an unhelpful update, advising that:

   “The Visa Bulletin for July 2007, posted on June 12, must be read in conjunction with the Update of July Visa Availability, posted on July 2.

   “The Update of July Visa Availability, posted on July 2, must be read in conjunction with the Visa Bulletin for July 2007, which was posted on June 12.”

   Gabriela Ptasinska, et al.: Ms. Ptasinska was the named plaintiff in a lawsuit (filed by a Chicago law firm before federal court in Illinois), on behalf of herself and similarly situated persons who had submitted adjustment of status applications for receipt in July. The lawsuit alleges that “on information and belief, in June 2007 USCIS requested from the State Department almost 60,000 visa numbers for pending cases, many of which had not even had their background and security checks completed.”

   For its part, by July 10 AILF announced that it did not need additional potential plaintiffs in its lawsuit on behalf of those who had already filed, and was seeking plaintiffs who would have filed “but for” the actions by USCIS and the Department of State. In other action, by letter dated July 11, Representative Lofgren requested from Department of Homeland Security Secretary Michael Chertoff, within three days, "all correspondence, emails, memoranda, notes, field guidance or other documentation" from the Department of Homeland Security, and between that entity and the Department of State, Department of Justice, and Federal Bureau of Investigation.

   It was not only lawsuits and demands from lawmakers that garnered attention. As The New York Times reported on July 11, "[1]n a Gandhi-inspired protest, foreigners working legally in the United States sent thousands of flowers to a top immigration official yesterday to draw attention to their complaints about job-based visas." The flowers received by USCIS Director Emilio Gonzalez in connection with this "floral protest" were transported to military personnel at Walter Reed Army Medical Center and the National Naval Medical Center.

   With pressures brought to bear from a number of quarters, USCIS and the Department of State capitulated. On July 17, USCIS issued an update advising that, "beginning immediately, it will accept employment-based applications to adjust status (Form I-485) filed by aliens whose priority dates are current under the July Visa Bulletin, No. 107. USCIS will accept applications filed not later than August 17, 2007." This was because, "[a]fter consulting with USCIS, the Department of State has advised that Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining employment visa number availability, and that Visa Bulletin #108 (dated July 2) has been withdrawn." The reversal allowed "anyone who was eligible to apply under Visa Bulletin No. 107 a full month's time to do so. Applications already properly filed with USCIS will also be accepted."

   Indeed, the Department of State issued its Visa Bulletin for August on July 17, indicating that all employment-based categories were unavailable. In doing so, the Visa Bulletin stated: "[a]t this time, it is uncertain whether any numbers will be returned and can be reallocated at a future date. Until informed otherwise, all readers should assume that the categories will remain unavailable until October, which is the beginning of the new fiscal year." But many readers were more concerned with the text under Item D, concerning July Employment-Based Visa Availability: "After consulting with Citizenship and Immigration Services, the Visa Office advises readers that Visa Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining Employment visa number availability, and that Visa Bulletin #108 (dated July 2) is hereby withdrawn."

   These developments were music to the ears of applicants who had suffered through a miserable 15-day period involving many aspects of day-to-day living. But there were still points of confusion, among them appropriate filing fee amounts and form versions required to be submitted. The July 17 USCIS update stated that: "The current fee schedule will apply to all applications filed under Visa Bulletin No. 107 through August 17, 2007. (The new fee schedule that becomes effective on July 30, 2007, will apply to all other applications filed on or after July 30, 2007)." This internally inconsistent information (how can the current fee schedule apply to "all" applications, while a different fee schedule applies to "all other" applications?) was only the first of several confusing agency missives on the subject.

   July 23 involved a flurry of activity by USCIS. It announced that "prepaid mailers," such as Federal Express, UPS, DHL or Express Mail envelopes with prepaid postage provided by customers seeking quicker transit time for documents and approval notices, would no longer be authorized. Two exceptions were allowed, for refugee travel documents and reentry permits. That same day, USCIS issued an update on its web site, reminding customers that "the agency's new fee schedule is effective on Monday, July 30, 2007. Applications or petitions postmarked or otherwise filed on or after that date must include the new fee." The agency also posted the first of two FAQs concerning employment-based adjustment of status applications, noting that it would "reject any filings submitted with incorrect filing fees." The FAQs confirmed that pre-July 30 filing fees for Forms I-485, I-765 and I-131 would remain in effect for employment-based filings under the July Visa Bulletin No. 107, for the balance of the full filing period until August 17, 2007.

   However, on July 23, USCIS also posted on its website a new version of Form I-485 (application for adjustment of status) - reflecting the fee increase that was to take effect on July 30 , pursuant to the final rule published in the Federal Register on May 30. On July 25, AILA advised members that USCIS had informed its liaison the new form was "posted in error," previous editions of the form could still be used, and the agency was "in the process of correcting their website." (AILA InfoNet Doc. No. 07072531). Small comfort to inexperienced or unrepresented users of the web site, who were likely thoroughly flummoxed in trying to ascertain how to submit a correct filing.

   Adding to the confusion, by July 26 anyone looking on the USCIS web site for current filing location information (i.e., for agency receipt on July 27) was out of luck. Pre-July 30 filing jurisdiction information was no longer available. On July 27, USCIS rescinded its July 23 discontinuation of prepaid mailers, noting that it had "caused anxiety for several of its customers" and was "committed to finding an alternative" that will allow for customer convenience "while not unduly impacting its operations."

   On July 30, the magical date on which certain filing fees changed, so did certain form versions - without advance notice. New versions of Forms I-765 (application for employment authorization), I-129F (fiancé(e) visa petition) and I-290B (Notice of Appeal or Motion to Reopen or Reconsider) were all posted on the USCIS web site, with language stating that only the new July 30 version would be accepted for filing. At this writing, USCIS has amended its web site such that at least one earlier version of each of these three forms may still be filed.

   Also on July 30, so-called "direct filing" for Forms I-129F, I-131, I-140, I-360, I-485, I-765 and I-907 took effect, amending applicable filing locations. That same day, USCIS posted Form G-1055, the new fee schedule represented as being in effect for all filings. The problem is, the listing is inaccurate in that it fails to note any special instructions regarding fees for Forms I-485, I-765 and I-131 in connection with employment-based cases filed on or before August 17, 2007 pursuant to July Visa Bulletin No. 107. To determine appropriate filing fees for such adjustment of status applications (I-485) and related employment authorization (I-765) and advance parole (I-131) applications, it is necessary to review the final rule published in the Federal Register on August 1, which states:

   "Because of the mid-month change to the Visa Bulletin, USCIS has determined that aliens in employment-based categories filing
   applications pursuant to Visa Bulletin No. 107 should not be required to pay filing fees based on the fee schedule that becomes effective July 30, 2007. Therefore, as a result of this rule, aliens who file an employment-based Form I-485 and any related Forms I-765 and I-131, pursuant to Visa Bulletin No. 107, through August 17, 2007, must include the filing fees in effect prior to July 30, 2007 . The new fee schedule becomes effective on July 30, 2007, for all other immigration and naturalization applications and petitions and on August 18, 2007, for Forms I-485 filed pursuant to Visa Bulletin No. 107 and to all subsequent or 'renewal' applications for advance parole and employment authorization based on pending Forms I-485 filed pursuant to Visa Bulletin No. 107."

   Conclusion: With so much in flux, and so many inconsistent instructions by the agency itself, it is extremely difficult for the inexperienced to decipher appropriate USCIS filing fees, form versions and filing locations. It is all too easy to file with incorrect fees or form versions, at the wrong location, or some combination of these flaws. With so much at stake, anyone in doubt is advised to seek competent legal advice before proceeding.