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.