A class action lawsuit is planned to challenge
USCIS's rejection of tens of thousands of applications for adjustment of status
(I-485s) based on employment (and usually approved labor certifications), after
the State Department Visa Bulletin announced that all EB categories would be
current for July, 2007 (click
here for related article).
The immediate questions for those who were
eligible to file in July are: 1) whether they should participate in the lawsuit,
and 2) what actions they need to take to be able to participate.
The lawsuit as planned will have at least two
classes of plaintiffs, including those who actually submitted I-485s and were
rejected, and those who did not submit I-485s but would have done so if the
USCIS had not announced it would reject them. A person does not need to
actively participate in the lawsuit (i.e., be a "named plaintiff") to
get the benefits of the lawsuit if it is successful.
Those who actually filed and were rejected may
have a better case than those who were only eligible to file and did not.
We will prepare and file applications for any of our clients who wish to be
included in the lawsuit. However, it is not clear whether filing would be
worth the time, trouble and expense. The following should be considered:
1. The USCIS has clearly announced that
it will reject all employment based (EB) I-485s. Except for the lawsuit, it will clearly be a
waste of time, additional legal fees, FedEx charges, and other costs to prepare
and file I-485s.
2. The medical exam results are valid
for one year. However, it is unknown how long the USCIS will retain the
applications before it returns them to us. If the applications are still
held by the USCIS when the quota is again current (perhaps for some people as
early as October), applicants will have to complete a new application (including
forms, medical exam results, and photos).
3. It is not clear that the actions of
the State Department (in issuing an amended Visa Bulletin) were in fact
unlawful. The entire lawsuit might be unsuccessful, in which case it would
not matter whether you tried to file or not.
4. The entire lawsuit might be
successful (that is, for both classes of plaintiffs), and again it would not
matter whether you tried to file or not.
5. It is not clear how long the lawsuit
will take. Often litigation can take months or even years, and the quota
for many may be current again by the time it gets to court.
6. Even if successful and timely, the
lawsuit will not result in the immediate issuance of green cards.
It will just provide the right to file the I-485. That may not change the
lives of most applicants. Those in H-1B status can continue to extend
their H-1B status. Those who are out of status have been out of status for
many years, so another year or two may not matter much. The biggest
advantage to filing the I-485 is that it gives the applicant the right to change
employers (to an employer other than the labor certification sponsor) after six
months. Also, those in another working status (such as TN) who are unable
to change to H-1B status would have a clear advantage in filing the I-485 (and
getting an employment authorization card).
In conclusion, it might not be worth the
trouble and expense to prepare and file applications that the USCIS has clearly
stated it will reject. We will however assist in the preparing and filing
for those who want to take the chance that there may be some benefit in becoming
a part of the stronger class of plaintiffs in the lawsuit.