• The October 2015 Visa Bulletin Revision: Answers to Frequently Asked Questions
  • December 4, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • The State Department’s sudden revision of the October Visa Bulletin late last Friday forecloses the ability of some employer-sponsored foreign nationals to file an application for adjustment of status and interim work and travel benefits next month.

    Fragomen and others in the business immigration community have been working throughout this process to make the government aware of the significant negative consequences that the Visa Bulletin revision will have on employers, foreign nationals and their families. While advocacy efforts continue, the following are initial answers to common questions about the impact of the Visa Bulletin revision.

    Why was the October Visa Bulletin revised?

    At the urging of USCIS, the State Department rolled back priority date cutoffs for eligibility to file in the EB-2 India and China and EB-3 Philippines subcategories, superseding an earlier version of the Bulletin that was released on September 9. Though neither USCIS nor the State Department has provided a detailed explanation for the revision, it appears that the agencies overestimated the number of immigrant visas that would be available to new applicants in the affected subcategories. Fragomen and its advocacy partners are seeking further information on the reasons for the revision.

    Could the State Department revert to the original October 2015 Visa Bulletin?

    No, despite vigorous advocacy efforts within the immigration community, it is unlikely that the State Department will reinstate the original October Visa Bulletin or that USCIS will agree to accept adjustment applications from foreign nationals whose priority dates were current under the original Bulletin but are not under the revision.

    Will a lawsuit be filed against the government? If so, must employers and foreign nationals participate in a lawsuit in order to benefit?

    Several exploratory efforts are underway to rapidly bring individual or class actions by or on behalf of foreign nationals negatively affected by the October Visa Bulletin revision. However, it should not be necessary to serve as a named plaintiff or file an adjustment and have it rejected or denied in order to benefit from any positive outcome.

    Litigation options are also under consideration among affected employers and trade associations, similar to those brought in 2007 when the State Department suddenly opened, then abruptly closed a filing window for employer-sponsored green card applicants.

    My priority date was current for application filing under the original October 2015 Visa Bulletin, but is not under the revised Bulletin. Should I file my adjustment despite the revision?

    No, if your priority date is no longer current due to the October Visa Bulletin revision, you should not file an adjustment application next month. If you were to file, your application would be rejected or denied by USCIS. The agency should return the application filing fees, but if fee checks are cashed in error, you risk the potential loss of those fees or a possibly lengthy delay in having them returned.

    As noted above, in case of litigation against the government, it should not be necessary to file an adjustment and have it rejected or denied in order for you to benefit from any positive outcome.

    Could priority date cutoffs for adjustment filing be advanced in the November bulletin?

    If efforts to further revise the October Visa Bulletin are not successful, it is possible that cutoff dates could advance in November. Fragomen is seeking further information, but any such advancements would not be known with certainty until the November Visa Bulletin is made available in early October.