Visa Bulletin's Unpredictability & What We Can Do About It!

On June 13, 2007, the Department of State issued its Visa Bulletin for July 2007. Based on that Visa Bulletin, with the exceptions of a few categories, virtually all employment-based categories were current. Hundreds and thousand of employees and employers were excited, jubilated, and high hope that visas are now available for them to adjust status to become permanent residents. To everyone's disbelief, on July 2, 2007, the Department of State issued a statement that 60,000 visas have been issued and "All numbers available to these categories under the FY-2007 annual numerical limitation have been made available." July 2nd would be the cut-off date. Any application received on or after that date would be returned. The State Department alleged that the issued visas were all applied to retrogressed application (applications that were previously pending based on visa availability cut-off dates).

The Department of State's action angered and frustrated applicants, employers, and attorneys alike. Over the two plus weeks (from June 13 to July 2), thousands of applicants, their employers, and attorneys worked hard to prepare applications and send them to USCIS via FedEx or UPS on June 30, 2007 to arrive to USCIS Monday July 2, 2007, the first work day in which the previous "July 2007 Visa Bulletin" would be applicable. No one could have predicted that the Department of State would issue such a statement on that same day. All applications that were sent on June 30, 2007 and which arrived on or after July 2, 2007 will be returned (along with their application fees).

As unpredictable as this may seem, against all business sense, immigration attorneys are all too familiar with USCIS and the Department of States' unpredictability. This is the same reason that when clients come into Garg & Associates, PC, we advise clients that we (attorneys and employers alike) can only operate based on current immigration law, federal regulations, and current visa availability dates based on the Visa Bulletin. It is futile for attorneys and employers to predict when and if the visa will be available. The dates issued on Visa Bulletins are an estimate, at best, on the time it would take for USCIS to process certain applications or for determining when a visa is available. The visa availability dates may skip months ahead, and sometimes years ahead, from one visa bulletin to another. At times, the dates remained unchanged for months on end; and with the July 2, 2007 announcement, as also before in October 2005, employment based categories that were available this month will not necessarily remain that way, even within the same month.

What we can do, however, is to prepare applications ahead of time, and be ready to file at last minutes notice. Employers should file Labor Certifications under PERM and/or I-140 Petitions for employees as soon as possible. By filing for PERMs or I-140 petitions for employees, the employers/applicants will be provided with a priority date, which as stated above, when there is retrogression (visa availability based on cut-off dates), your applications will be processed ahead of other new applications. After receiving the PERM and/or I-140 approvals, employers should also prepare and file I-485 Adjustment of Status for employees to become permanent residents (Green Card Holder). We cannot predict USCIS or the Department of States' actions and announcements; however, we can be proactive and be prepared to file I-140 and PERM applications right now to be ahead of the game. Please contact one of our immigration attorneys at http://www.houston-immigration-lawyers.com for more information and assistance in filing your applications.