Immigrants Back in Line After ‘Visagate' Case Tossed

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By Laura D. Francis

May 16 — A group of immigrants seeking high-skilled, employment-based green cards will have to keep waiting for their numbers to come up after a federal judge threw out their lawsuit over the October 2015 Visa Bulletin.

Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington held that the State Department's Visa Bulletin—which lets immigrants know when they can apply for visas—isn't a final agency action that can be challenged in court.

The decision is a major blow for a proposed class of likely more than 1,000 immigrants who prepared to apply for their employment-based green cards Oct. 1, 2015, only to find out a few days earlier than they were not, in fact, eligible to apply on that date, a situation referred to in the immigration community as “Visagate.”

It follows an initial setback in October 2015, when Martinez denied their request for a temporary restraining order (194 DLR A-2, 10/7/15).

It's also partially a setback for President Barack Obama's executive action on immigration. The Visa Bulletin changes were part of that November 2014 action (225 DLR AA-1, 11/21/14), detailed later in a July 2015 White House report on modernizing the legal immigration system.

October Visa Bulletin Reissued

The case relates to a change in the October 2015 Visa Bulletin after its initial publication Sept. 9, 2015 (174 DLR A-8, 9/9/15). Several immigrants—possibly more than 1,000—believed based on that bulletin that they could apply for their green cards much sooner than originally thought.

But the State Department and U.S. Citizenship and Immigration Services issued a new bulletin Sept. 25 that severely scaled back the number of people who could apply for their green cards Oct. 1 (187 DLR A-13, 9/28/15).

The impact was felt most heavily by Chinese and Indian immigrants seeking EB-2 visas. Immigrants from those countries normally have to wait years or even decades for their green cards because of the annual limits on visas coupled with per-country limits, which tend to impact immigrants from heavily populated countries most severely.

The lawsuit, filed Sept. 28, 2015 (188 DLR A-3, 9/29/15), claimed the immigrants reasonably relied on the information in the Sept. 9 version of the Visa Bulletin, spending a great deal of money on legal fees and getting all their paperwork in order.

In fact, the plaintiffs argued, the idea behind issuing the Visa Bulletin some three weeks earlier than the month to which it pertains is to create a “Preparation Period” for immigrants to get their applications ready to go by the first of the month.

‘Informative Rather Than Declarative.'

But Martinez said both the Visa Bulletins at issue in the case “intrinsically indicate that USCIS ‘may' use the dates contained in the charts, and that dates might be ‘retrogressed' or categories of applications made ‘unavailable' without notice,” Martinez said. “The Visa Bulletins are informative rather than declarative in tone.”

In addition, the bulletins didn't create any rights—the affected immigrants didn't have a right to apply for their green cards, and the USCIS had no obligation to accept any applications—until Oct. 1, 2015.

Therefore, there were no legal consequences to the USCIS and State Department changing the information on the Visa Bulletin from Sept. 9, 2015, to Sept. 25, 2015, the court held.

Siskind Susser; Barret, Johnston, Martin & Garrison; and Gibbs Houston Pauw represented the immigrant plaintiffs. The Justice Department represented the State and Homeland Security departments.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com