A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, October 1, 2015

To file, or not to file, that is the question

During the last five days, I have heard many grievances and complaints from folks who were all ready to file their green card applications but cannot because of the last minute "rollback" of application filing dates in the October Visa Bulletin.  Rollbacks might make shoppers smile at Walmart, but rollbacks in visa numbers a few days before the effective date have a totally different meaning.

After waiting patiently for many years, these visa applicants, most of them law abiding and tax-paying professionals, were thrilled to learn that they would finally be able to file their I-485 adjustment applications, change their jobs, travel freely to see their family and friends, etc. They took time off from work, obtained their medical exam reports, applied for the required documents, paid their legal fees, made travel plans, etc., only to be told at the eleventh hour that they actually could not proceed with the applications. Their frustration is understandable.  

The American Immigration Lawyers Association (AIlA) and its members have stepped up to the plate by taking a series of actions, including filing a class action lawsuit in federal court, issuing letters to the DOS Secretary and DHS Secretary requesting the original filing dates be restored, and keeping in constant contacts with officials in USCIS and the White House.  Thus far, the government has not provided any definite response.

Meanwhile, October 1st is already here.  Applicants are faced with the question - Should I file the I-485 despite the revised visa bulletin?  On the one hand, it doesn't seem to make sense to file the applications knowing that they will likely be rejected.  On the other, nobody knows for sure what the government is going to do until later on.  One argument to support filing is that, once a case is filed and rejected, then the applicant would have actually suffered harm and be eligible to challenge the government actions in court.  The more likely result is that if there is a reversal of policy, all eligible applicants would be allowed to submit their I-485s.  Perphaps the strongest pro-filing argument is one of morale -- the more applicants submit their I-485s based on the original visa bulletin, the more likely that their voice will be heard by the government agencies.

Applicants should also take financial considerations into account.  Most of them have already spent money to obtain their documents, translations, medical examination reports, legal fees, etc.  The medical report will become invalid anyway after one year.  If a case is rejected, it is possible but unlikely that the government will keep the filing fees.

Immigration policy changes quickly. In the same way that the filing dates were rolled back suddenly, a positive change in policy could also come down at any moment.  Court injunctions, changes in USCIS policy, or further visa bulletin revisions, etc., could change the situation overnight. Hence, applicants should have all documents, applications, etc., ready, so that they can be submitted on short notice.

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