On September 28, 2015, a class action lawsuit was filed against the U.S. Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) over last minute changes to the Visa Bulletin for October 2015.

In Mehta v. DOS, plaintiffs have asked the court to strike down the revised September 25, 2015 Visa Bulletin and to compel USCIS to accept I-485 adjustment of status applications based on the original September 9, 2015 Visa Bulletin. The lawsuit states:

This case is about what happens when thousands of law-abiding, highly skilled immigrants spend millions of dollars preparing to apply for green cards in reasonable reliance on an agency’s binding policy statement, only to find out at the last minute that a hapless federal bureaucracy has abruptly, inexplicably, and arbitrarily reneged on its promise.

The table below shows the “Dates of Filing” affected by the revised Visa Bulletin for October 2015.

We are disappointed to report that many applicants will continue to face lengthy waits before they can submit their I-485 adjustment of status applications for permanent residence.

On September 25, 2015, the U.S. Department of State (DOS) published a revised Visa Bulletin for October 2015, rolling back the “Dates for Filing” for several visa categories. This “Revised September 25, 2015” Visa Bulletin supersedes the previous Visa Bulletin for October 2015, which was originally published on September 9, 2015.

Please note that the following “Dates for Filing” have changed:

 
Therefore, individuals who fall under the above-referenced categories will only be permitted to file for adjustment of status in the month of October if they have a priority date that is earlier than the NEW Filing Date listed in the revised September 25, 2015 Visa Bulletin.

According to a statement released by the President of the American Immigration Lawyers Association (AILA):

For people who have been patiently waiting in line and are stuck in the long visa backlogs emblematic of the U.S. legal immigration system, this is yet 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. This mistake affects real people: individuals who have already made important life decisions based on previously released information published by the government two weeks ago. They now, once again, face extended delays before they can get travel documents and employment authorization. In the long run, the announced changes to the visa bulletin are improvements to the system that will eventually help thousands of families and individuals to plan and get on with their futures, but in the short run this miscalculation has serious consequences. Frankly, they deserve better, and the Administration should be ashamed and embarrassed at the harm this mistake has caused.

A full comparison of the September 9, 2015 dates to the September 25, 2015 dates is available here.
 

The U.S. Congress continues to negotiate on the FY2016 budget, but if no agreement is reached, or if a Continuing Resolution is not passed, or no other stopgap method implemented, we may have another government shutdown on October 1, 2015.

If the government shuts down, the U.S. Department of labor (DOL) employees will be placed in furlough status which means that it will not accept applications or related materials (such as audit responses) as of October 1, nor will it process those already received, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification (H-2A/H-2B), or Applications for Permanent Employment Certification. Furthermore, DOL’s online systems (iCERT and PERM) will not be operational and will not accept PERM, LCA, or prevailing wage applications, and authorized users will not be able to access their online accounts. Also, DOL would not have a functioning mailroom and would not be able to receive or process PERM audit responses or other applications received in the mail. This has a significant impact on H-1B, H-1B1 (Singapore/Chile), E-3 and PERM applications. While DOL made accommodations in 2013 to accept applications that were affected by the shutdown, there is no way to be certain it will do so again.

To date, other government agencies have not outlined any contingency plans due to the possibility of a government shutdown on or after October 1, 2015. It is reasonable to believe that in the event of a government shutdown, contingency plans will mirror plans during the last government shutdown in 2013. For example, many of the U.S. Citizenship and Immigration Services (USCIS) functions (with the exception of E-Verify) will continue, since they are primarily funded through user fees. USCIS also accommodated late filing of cases that were affected by the shutdown. Similarly, the U.S. Immigration Customs Enforcement (ICE) SEVP (SEVIS) continued operations because it is also a fee-funded program and does not receive any government-appropriated funds. In 2013, the U.S. Department of State (DOS) continued as many normal operations as possible based on existing funding. All U.S. Customs and Border Protection (CBP) ports of entry remained open, as well as all global entry enrollment centers.

A Continuing Appropriations Resolution has been introduced, which if passed, would fund the federal government through December 12, 2015.

Loke Walsh Immigration Law, PC will continue to monitor the situation and provide updates as they are received.
 

The U.S. Citizenship and Immigration Services (USCIS) announced today that it will suspend final adjudication of employment-based Form I-485 applications because the Department of State reports that the statutory cap has been reached for the employment-based preference categories for fiscal year (FY) 2015. This suspension applies to all employment-based adjustment applications pending with USCIS for the next six days through September 30, 2015 (the remainder of FY2015).

USCIS will continue to accept adjustment of status applications that are filed when the foreign national’s priority date is earlier than the cut-off date published in the September Visa Bulletin for his or her preference category and country of birth/chargeability.

USCIS will resume final adjudication of all employment-based adjustment applications beginning October 1, 2015, when visa numbers are again available.

^{This article was updated on September 25, 2015}
 
Finally, some great news for green card applicants stuck in family and employment-based category backlogs! On September 9, 2015, USCIS announced that it has revised procedures that will allow certain green card applicants to file an I-485 adjustment of status application before his or her priority date is current.

As of October 2015, the Visa Bulletin will include two separate charts in both the family and employment based categories. The first chart, the “Application Final Action Dates” chart will list the priority dates that are current. In order for USCIS to approve an immigrant visa (i.e. green card), the priority date must be “current.” A priority date is current if there is no backlog in the category (shows as “C”) or if the priority date is on or before the date listed in the Visa Bulletin. The second, new chart is the “Dates for Filing Application” chart, which indicates the date when a green card applicant can submit an I-485 adjustment of status application. If the date on the chart is current (“C”) or your priority date is earlier than the date on this chart, you may file your I-485 adjustment of status application with USCIS.

What does this all mean? Many applicants in both the family and employment based categories, have been “stuck” in backlogs, known as retrogression, for many years. Many applicants would have waited years, even decades before being eligible to apply for an I-485 adjustment of status application. This move is especially significant for many Chinese and Indian nationals who are stuck in long, almost depressing backlogs. While this change does not “speed up” the wait to actually obtain the green card, it does provide relief for many applicants and their families who can now obtain “combo” cards which provide unrestricted employment and travel authorization. It also means that applicants may not have to constantly reapply for new visa stamps at U.S. embassies abroad and also allows greater flexibility with AC-21 green card portability.

Qualified applicants and their families will be able to submit an I-485 adjustment of status application when these changes become effective on October 1, 2015. Based on current processing times, we expect USCIS to take approximately 2 to 3 months to process the combo card.

If it all sounds like mumbo jumbo and you are more of a visual person, here’s an example of how to read the charts. Let’s use the following hypothetical. Pretend that Donald is an Indian national, married to the lovely Hillary. Donald filed under the EB-2 category and has a priority date of June 14, 2011. The October 2015 Visa Bulletin’s “Application Final Action Dates” chart (Chart 1) shown below, lists EB-2 India as May 1, 2005. This means that an immigrant visa (i.e. green card) can only be issued (i.e. I-485 adjustment of status application approved) to an Indian national with a priority date on or before May 1, 2005. Donald’s priority date is not yet current. Is Donald out of luck?
 

Application Final Action Dates for Employment-Based Preference Cases (CHART 1)

 
Maybe not! Donald and the lovely Hillary may qualify under this new provision and be able to submit their I-485 adjustment of status applications now. This is where the “Dates for Filing Employment-Based Visa Applications” chart (Chart 2) below, must be consulted. To find out if Donald qualifies now, he has to find his visa type in the first column (EB-2 or 2nd) of the Chart 2. He has to stay in the row and move directly to the right to find the corresponding date for India. Chart 2 lists July 1, 2011 for EB-2 India. In order for Donald and Hillary to file their I-485 applications, their priority date must be earlier than July 1, 2011. Since Donald’s priority date is June 14, 2011, he and Hillary, along with any non-U.S. citizen children, may apply for their I-485 adjustment of status applications.
 

Dates for Filing of Employment-Based Visa Applications (CHART 2)

 
But, imagine – what if Donald filed an EB-3 case instead of an EB-2? He and the lovely Hillary, would be out of luck. Chart 2 lists July 1, 2005 for EB-2 India. In this second hypothetical, Donald and Hillary would not be able to file their I-485 adjustment applications just yet. But, Donald would be able to extend his H-1B in three-year increments and Hillary could apply for the H-4 EAD. So, not all is lost!

For more information on retrogression, please read our FAQ.

If you have questions about qualifying for this new procedure, please contact any member of the Loke Walsh Immigration Law team.

UPDATE (9/25/2015):

On September 25, the U.S. Department of State (DOS) updated the Visa Bulletin for October 2015, which supersedes the Visa Bulletin for October 2015 that was originally published on Sept. 9, 2015 (when this article was originally written). The adjusted dates of filing are highlighted in the following tables:
 

UPDATED (9/25/2015): Dates for Filing Family-Sponsored Visa Applications

UPDATED (9/25/2015): Dates for Filing of Employment-Based Visa Applications

German citizens may now apply for U.S. Global Entry.

Global Entry is a U.S. Customs and Border Protection (CBP) program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. At select airports, Global Entry members enter the United States through automatic Global Entry kiosks, present their machine-readable passport or U.S. permanent resident card, place their fingerprints on the scanner for fingerprint verification and complete a customs declaration. The kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.

Travelers must be pre-approved for the Global Entry program. All applicants undergo a rigorous background check and in-person interview before enrollment. While Global Entry’s goal is to speed travelers through the process, members may still be selected for further examination when entering the United States. Any violation of the program’s terms and conditions will result in the appropriate enforcement action and termination of the traveler’s membership privileges.

U.S. citizens, U.S. lawful permanent residents and citizens of a few other countries are eligible for Global Entry membership. Global Entry is also available to:

• Citizens of Germany
• Citizens of the Netherlands
• Citizens of Panama
• Citizens of South Korea
• Mexican nationals

Canadian citizens and residents are eligible for Global Entry benefits through membership in the NEXUS program.

If you are under the age of 18, you must have your parent or legal guardian’s consent to participate in the program.

You may not be eligible for participation in the Global Entry program if you:

• Provide false or incomplete information on the application;
• Have been convicted of any criminal offense or have pending criminal charges or outstanding warrants (to include driving under the influence);
• Have been found in violation of any customs, immigration or agriculture regulations or laws in any country;
• Are the subject of an ongoing investigation by any federal, state or local law enforcement agency;
• Are inadmissible to the United States under immigration regulation, including applicants with approved waivers of inadmissibility or parole documentation; or
• Cannot satisfy CBP of your low-risk status.

The latest Visa Bulletin (September 2015) shows significant retrogression under the EB-2 categories for China and India. EB-2 China retrogressed from December 13, 2013 back to January 1, 2006. Meanwhile, EB-2 India didn’t fare much better, retrogressing from October 1, 2008 to January 1, 2006. And EB-3 (all countries except for China, India, and the Philippines) continues to surprise us all, remaining “practically” current with an August 15, 2015 priority date. Apologies again to our Chinese and Indian friends stuck in EB-3 hell, with an EB-3 priority date of December 22, 2004.

Stay tuned…

Today, U.S. Department of Homeland Security (DHS) Secretary Jeh C. Johnson announced the implementation of new security enhancements to the visa waiver program. These changes will apply to both new and current members (38 countries) of the program. Some of these new measures include:

• Required use of e-passports for all Visa Waiver Program travelers coming to the United States,
• Required use of the INTERPOL Lost and Stolen Passport Database to screen travelers crossing a Visa Waiver country’s borders,
• Permission for the expanded use of U.S. federal air marshals on international flights from Visa Waiver countries to the United States.

U.S. Customs and Border Protection (CBP) notified the public that it intends to conduct a test to collect biometric and biographic information from certain foreign travelers who are departing the United States on selected flights from up to ten identified U.S. airports.

INSPECTION PROCESS

The Biometric Exit Mobile Air Test or “BE-Mobile Air Test” will be conducted at the identified airports on randomly pre-selected outbound international flights. Using an wireless hand-held device, CBP will collect biographic data from departing foreign nationals, who are covered by the test, by swiping, or inputting the information from, the foreign national’s travel document. The data collected will be stored in a CBP biographic database. CBP will also capture two (2) fingerprints from the foreign traveler and verify them against the traveler’s biometric identity record. Once the verification and departure inspection is complete, the DHS biometric database and the CBP biometric database will be updated with the verification results in real time.

“The primary mission of any biometric exit program is to provide assurance of traveler identity on departure, giving CBP the opportunity to match the departure with a prior arrival record. This capability enhances the integrity of the immigration system and the ability to accurately detect travelers that have overstayed their lawful period of admission to the United States.”

APPLICABILITY

The BE-Mobile Air Test program does not apply to U.S citizens. It only applies to foreign nationals who are departing the United States on selected international flights at one of the selected airports. Foreign nationals who are in the following status at the time of departure are exempt from the program:

1. Canadian citizens who under section 101(a)(15)(B) of the Immigration and Nationality Act are not otherwise required to present a visa or have been issued Form I-94 (see § 1.4) or Form 1-95 upon arrival at the United States;
2. Aliens admitted on A-1, A-2, C-3 (except for attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 visas, and certain Taiwan officials who hold E-1 visas and members of their immediate families who hold E-1 visas who are maintaining such status at time of departure, unless the Secretary of State and the Secretary of Homeland Security jointly determine that a class of such aliens should be subject to this notice;
3. Children under the age of 14;
4. Persons over the age of 79;
5. Classes of aliens the Secretary of Homeland Security and the Secretary of State jointly determine shall be exempt; or
6. An individual alien whom the Secretary of Homeland Security, the Secretary of State, or the Director of Central Intelligence determines shall be exempt.

DURATION

CBP will collect biographic information and fingerprint data from select non-exempt aliens departing on selected international flights from the identified airports for a period of approximately one year from July 2015 to June 2016.

SELECTED AIRPORTS

The BE-Mobile Air Test will begin at Hartsfield-Jackson Atlanta International Airport and will expand to the following cities this coming fall:

• Chicago
• Dallas
• Houston
• Los Angeles
• Miami
• Newark
• New York
• San Francisco
• Washington-Dulles

The State Department reports that nearly 50 U.S. embassies and consulates, representing nearly three-quarters (73 percent) of the nonimmigrant visa demand worldwide, are now online and issuing visas. Consular posts around the world issued more than 60,000 visas on June 23. U.S. embassies/consulates in China alone issued nearly 25,000 visas.

Collectively, consular posts have issued more than 150,000 non-immigrant visas since June 9. For context, if systems had been operating normally, posts would have issued approximately 450,000 visas during the June 9-23 timeframe. The State Department expect to close this gap rapidly over the next few days.

In the meantime, the State Department continues to bring additional consular posts online until connectivity with all of them is restored. All posts worldwide are now scheduling interviews with applicants, including those who applied after the systems problems began on June 9.

The following are the consular posts that are back up and running as of June 24, 2015.