Court dismisses lawsuit over Visa Bulletin

A federal court in Seattle has dismissed a class action lawsuit brought by employment-based immigrants who sued the State Department last year for suddenly revising its Visa Bulletin for October 2015, thus making them ineligible to apply for permanent residence. They claimed they relied on the initial bulletin that made them eligible to file, spending significant time and money preparing their petitions before the agency issued the revised bulletin.

Key points:

• The court said that because the government revised the Visa Bulletin before the filing month began, the immigrants did not have a right to submit their applications and the government did not have an obligation to accept them.
• The ruling does not affect or disturb the current Visa Bulletin system.

Background: On Sept. 9, 2015, the State Department issued a Visa Bulletin that would have allowed tens of thousands of high-skilled immigrants to file adjustment-of-status applications at the beginning of October 2015. Two weeks later, the department reversed its policy and issued a revised bulletin rolling back the eligibility dates. The group of intending applicants filed a lawsuit in the U.S. District Court for the Western District of Washington, alleging that the revision violated the Administrative Procedure Act and seeking reinstatement of the original Visa Bulletin. The court held that it lacked jurisdiction over the matter because the revision to the Visa Bulletin did not constitute a “final agency action” covered by the Act.

BAL Analysis: The plaintiffs have not indicated whether they intend to appeal, but they are unlikely to prevail. Employment-based immigrants should continue to follow the current two-chart system in which the State Department publishes Final Action Dates and Dates for Filing charts. The Dates for Filing chart, however, does not take effect until U.S. Citizenship and Immigration Services confirms that there are a sufficient number of available visas and announces that the chart may be used.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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