From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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.
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.
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 firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Mehta_et_al_v_US_Department_of_State_et_al_Docket_No_215cv01543_W/1.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)