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Immigration News - July 2, 2007

July 02, 2007

By Immigration Practice Group

USCIS Stops Accepting Adjustment Filings

This morning, the Department of State (DOS) issued an update on immigrant visa availability for July. Effective today, no more employment-based immigrant visas in any category will be available for this fiscal year. Employment-based immigrant visa numbers will again become available on October 1, 2007, when Fiscal Year 2008 begins. DOS attributes the change in previously announced visa availability to a sudden backlog reduction effort by U.S. Citizenship and Immigration Services (USCIS) to adjudicate pending adjustment of status applications. As a result, almost 60,000 employment-based visa numbers have been used over the past month, thereby exhausting available numbers for this fiscal year.

Following the DOS announcement, USCIS issued its own press release indicating that, starting today, it will not accept adjustment applications for filing. This is a radical departure from longstanding practice. There are strong arguments that USCIS should accept the adjustment applications based on the previously issued July Visa Bulletin, notwithstanding the fact that the applications could not be approved before October, 2007. Certain key Congressional offices are actively engaged in questioning the USCIS decision. In addition, the possibility of litigation is being explored by some organizations.

A difficult question is whether adjustment of status applications should be sent to USCIS for filing, even though the present policy is to reject the filings. One view is that documenting the attempt to make an adjustment filing may arguably strengthen an applicant's position if the applicant joins in a lawsuit against the Government. On the other hand, there are good arguments that attempting to file would not provide any meaningful advantage. Decisions about filing at this point should be made on an individual basis in consultation with legal counsel.

We are closely monitoring all developments on this issue and will keep you informed.