A.1. The U.S. Department of State (DOS) is responsible for determining the availability of immigrant visas each month. Employment-based immigrant visa numbers are subject to an annual quota of 140,000 per year (for principals and their family members), as well as complex statutory formulas that regulate the number of visas that can be allocated to each employment-based preference category annually, the number of visas that can be allocated in each quarter of the year and the number of visas that can be allocated annually to natives of individual countries. On the basis of these formulas, DOS is responsible for determining the allocation of immigrant visas each month.

To determine immigrant visa availability for a given month, DOS confers with the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) to forecast the demand for immigrant visas for the coming month. If there are not enough numbers to satisfy the demand for a particular category, that category is designated as "current" for a given month. If demand exceeds supply, the State Department sets a cutoff date for the category; only those foreign nationals whose priority dates are earlier than the cutoff date are eligible to apply for an immigrant visa abroad or for adjustment of status. Where no further visas are available to a specific immigrant visa subcategory or country of chargeability, the subcategory is designated as "unavailable."

During the second week of each month, the State Department issues a Visa Bulletin, which sets forth immigrant visa availability for the forthcoming month. A foreign national whose priority date

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is current for that month is eligible to file an application for adjustment of status or an immigrant visa application as of the first day of the particular month.

A.2. Typically, advances in priority date cutoffs are made due to lower than expected demand for visa numbers from USCIS (which processes applications for adjustment of status to permanent residence filed by foreign nationals in the United States) and from U.S. consular posts (which process applications for immigrant visas filed by foreign nationals outside of the United States).

The Department of State suggested in its original July Visa Bulletin that it was making categories current in an effort to generate increased demand by USCIS for visa numbers for adjustment of status cases, and to maximize visa number use under the annual numerical limit in FY 2007. DOS based its initial projections about visa usage on USCIS adjudication patterns from earlier in the year; USCIS had indicated that backlogs in security checks were an obstacle to speedier adjudications of adjustment applications.

WHERE DID THE VISAS GO?

A.3. FRAGOMEN learned shortly after the July Visa Bulletin was issued in mid-June that there were still approximately 40,000 immigrant visa numbers left in the employment-based pool for FY 2007. However, for reasons that are still unclear, USCIS greatly accelerated its adjudications after DOS’s June 13 announcement. A government source has indicated, for example, that in the first eight months of this fiscal year, USCIS approved a total of approximately 66,000 adjustment of status applications. In June alone, however, the agency approved 60,000 applications, 18,000 of which were approved on Sunday, July 1.

Together with immigrant visas issued by U.S. consular posts abroad, the total number of immigrant visa numbers allocated to USCIS for adjustment of status applications actually exceeds the annual worldwide limit of 140,000 employment-based immigrant visas. Note, however, that while USCIS is allocated visa numbers after an adjustment of status application is approved, consular posts are provided with visa numbers in advance of scheduled immigrant visa interviews, and if a case is denied or the foreign national fails to appear at the interview, the unused number is returned to DOS for re-allocation. In any event, based on these figures, DOS found it necessary to revise its July Visa Bulletin to indicate that no further visas are available for the remainder of the fiscal year.

A.4. Federal regulations do not allow for the filing of adjustment of status applications when immigrant visa numbers are unavailable. For this reason, USCIS determined that, once the State Department’s revised its Visa Bulletin for the month of July to indicate that there were no more available visa numbers in the employment-based immigrant visa categories, it had to reject any employment-based adjustment applications filed on or after July 2, 2007. 3

FILING AND PROCESSING ISSUES

A.5. Based on the information provided in the original July Visa Bulletin, tens of thousands of prospective immigrants spent considerable time and money, as did their employers and attorneys, in preparing their applications for adjustment of status to permanent residence and gathering the necessary supporting documents. Untold thousands of such applications were sent to USCIS via overnight courier for receipt on Monday, July 2, 2007, the first business day after the July 1 effective date of the July Visa Bulletin, and many others were poised to be submitted soon thereafter. Based on DOS’s and USCIS’s announcements on July 2, any employment-based adjustment applications received by USCIS on or after July 2 will be rejected and returned to the applicant or his/her attorney of record.

A.6. DOS has indicated that employment-based immigrant visa numbers will once again be made available beginning on October 1, 2007, under the FY 2008 annual numerical limitation. However, there are likely to be cut-off dates for all countries in the third employment-based category, and in other employment categories for persons born in countries with historically high demand for immigrant visas, such as China and India. It remains to be seen what cut-off dates, if any, will actually be imposed in October. As soon as the foreign national’s priority date is current, any rejected adjustment application can be re-filed with USCIS.

A.7. In response to entreaties by FRAGOMEN, the American Council on International Personnel (ACIP), and the American Immigration Lawyers Association (AILA), USCIS has agreed that for concurrent filings of Form I-485 adjustment applications and Form I-140 immigrant worker petitions, the agency will retain and process the I-140 petition if the I-140 filing fee was paid in a separate check. Unfortunately, if all filing fees were included in one check, USCIS has no mechanism to process the I-140 filing fee alone, so it will reject and return the entire application package, although employers can re-file the I-140 alone with a separate check.

Attorneys and employers should carefully monitor the status of any I-140 petitions that were filed concurrently with I-485 adjustment applications on July 2. The Department of Labor’s new regulation on labor certification validity, which imposes a 180-day validity period on labor certifications, takes effect on July 16, 2007, and Form I-140 petitions must be filed within this period. It is not known how long it will take USCIS to sort through the thousands of applications it received on July 2 and issue receipt notices for any I-140s that were concurrently filed with adjustment applications. If the validity period of a labor certification will soon expire and no receipt notice for the I-140 has been received, consideration should be given to filing a new I-140. Note, however, that labor certification validity will not become an issue until the 180-day validity periods near conclusion, which will occur in mid-January 2008 at the earliest.

A.8. Applications for employment authorization and advance parole will be rejected along with the adjustment application. Persons nearing the end of their authorized periods of stay in valid nonimmigrant status should consult with counsel about other options. Dependents who were applying for employment authorization should be advised that they will not be eligible for work authorization until such time as the principal’s priority date is current and they can re-submit applications for adjustment of status.

A.9. Medical examination results are considered valid for up to one year, so the medical exam need not be updated so long as the adjustment application can be re-filed within one year of when the exam took place. If the adjustment application cannot be re-filed until after July 1, 2008, however, updated medical exam results must be submitted. In addition, photographs submitted with adjustment applications must have been taken within 30 days of the application. Accordingly, new photographs will have to be provided.

A.10. The USCIS’s new fee schedule is effective on July 30, 2007. Applications or petitions postmarked or otherwise filed on or after that date must include the new fee.