CRS Reports & Analysis
Legal Sidebar
Federal Court Weighs in on “VisaGate 2015”: Part 1,
the Visa Bulletin and Recent Revisions to It
11/16/2015
A federal district court in Washington State recently weighed in on the permissibility of certain changes made by the
Department of State (DOS) to the October 2015
Visa Bulletin in an incident widely known as “VisaGate 2015.” The
upshot of the court’s decision is that the federal government is not required—at least not at present—to abide by the
initial version of the
Visa Bulletin released by DOS on September 9, 2015. This version would have permitted more
temporary alien guest workers (i.e., aliens with nonimmigrant visas) to file applications for adjustment to lawful
permanent resident (LPR) status than are permitted to do so under the revised October Bulletin, released on September
25, 2015. Aliens who would have been eligible to file for adjustment (and thus receive certain immigration benefits)
under the initial version, but are not eligible under the revised version, sued alleging that the supersession and
replacement of the initial version runs afoul of the U.S. Constitution and federal statutes.
This two-part Sidebar explains the complex factual and legal issues implicated in “VisaGate 2015.” In particular, Part 1
explains what the
Visa Bulletin is and the revisions made to the October 2015
Bulletin.
Part 2 discusses the legal
challenge to DOS’s reliance on the revised—rather than the initial—version of the October
Bulletin, as well as certain
questions remaining after the district court decision.
The Visa Bulletin in General
The Visa Bulletin is a monthly publication of the DOS that identifies when immigrant visas are available to aliens
seeking either adjustment of status, in the case of aliens present within the United States, or admission to the United
States as an LPR, in the case of aliens outside the United States. (It does not address the availability of nonimmigrant
visas.) Aliens generally become eligible for immigrant visas based on
petitions filed by qualifying family members or
prospective employers. However, they may have to wait months or years after a petition is filed for a visa to become
available because the Immigration and Nationality Act (INA) limits (with some exceptions) both the total number of
visas issued per year and the number of visas issued to aliens from individual countries.
The
Bulletin has historically established the date on which visas are seen to be available to individual aliens
based on
the date on which the visa petition for the alien was filed or, in the case of certain employment-based visas, the date on
which a
labor certification was filed. For example, if a monthly Visa Bulletin were to show a date of January 1, 2007,
for a particular category of aliens, that would mean that aliens whose petitions or labor certifications had been filed
before January 1, 2007, could begin the process of becoming LPRs, while those whose petitions or labor certifications
were filed on or after that date could not.
Aliens do not become LPRs as soon as the
Visa Bulletin reflects the filing date of the alien’s visa petition or labor
certification (commonly known as the alien’s “priority date”). Rather, once the alien’s priority date is reached, the alien
may take certain steps that lead to an alien becoming a LPR. In the case of aliens already present in the United States
(e.g., aliens present on nonimmigrant visas), this means filing a Form I-485, Application to Register Permanent
Residence or Adjust Status. However, the mere opportunity to
file a Form I-485 is significant because aliens who have
applied for adjustment from a nonimmigrant status to LPR status are eligible for certain immigration benefits, including
employment authorization documents (EADs) that are not tied to a specific employer. Other immigration benefits also
accrue after a Form I-485 is filed and has been pending for at least 180 days.
The October Visa Bulletin
Normally, there is only one
Visa Bulletin for a month. However, for October 2015, DOS ended up issuing two versions.
The initial version, issued on September 9, would have permitted a number of aliens to file Form I-485s who are not
eligible to do so under the revised
Bulletin, issued on September 25. The category of aliens from India seeking
employment-based “second preference” visas (i.e., EB-2 visas)—available to those with advanced degrees or
exceptional ability—illustrates this. Under the initial version of the October
Bulletin, Indians seeking EB-2 visas who
had petitions or labor certifications filed before July 1, 2011, were eligible to file Form I-485s. However, in the revised
version, this date was changed to July 1, 2009, meaning that some Indians seeking EB-2 visas who had thought they
were eligible to file for adjustment of status—and had incurred certain expenses in anticipation of filing—cannot file
their applications in October 2015. The same is true for some other categories of aliens.
Certain aliens have filed a legal challenge seeking to compel the federal government to abide by the initial version of the
October
Visa Bulletin. That litigation is discussed in
Part 2.
Posted at 11/16/2015 10:07 AM
CRS Reports & Analysis
Legal Sidebar
Federal Court Weighs in on “VisaGate 2015”: Part 2,
the Court’s Decision and Unresolved Issues
11/16/2015
As Part 1 of this Sidebar noted, the Department of State (DOS) recently rescinded and replaced the initial version of the
October 2015
Visa Bulletin. This change prompted a legal challenge from certain aliens who would have been eligible
to file a Form I-485 application for adjustment of status under the initial version of the
Bulletin, but not the revised one.
In its October 6, 2015, decision in
Mehta v. U.S. Department of State, a federal district court in Washington State ruled
against the challengers, declining to issue a temporary restraining order (TRO) that would have compelled the
government to abide by the initial version of the October
Visa Bulletin. (A TRO is a court order that requires the parties
in a case to maintain a certain status until the court can hear further evidence and decide whether to issue a preliminary
injunction.) However, the litigation in
Mehta continues, and other legal questions related to “VisaGate 2015” also
linger, as discussed below.
The Plaintiffs’ Claims in Mehta
In
Mehta, certain aliens who were eligible to file Form I-485s under the initial version of the October
Bulletin, but not
under the revised version,
sought to compel the federal government to abide by the initial version. The alien plaintiffs’
claims were generally premised on the view that the
Visa Bulletins are legally “binding policy statement[s]” that take
“immediate legal and practical effect upon ... publication by shaping the conduct and expectations of regulated parties
and agencies.” Based on this characterization of the
Bulletin, they alleged that the “abrupt rescission” of the October
Bulletin and its replacement with a revised October
Bulletin runs afoul of the Administrative Procedure Act (APA), in
part, because it “retroactively altered” the plaintiffs’ legal rights and left the plaintiffs “with no adequate notice of the
agency’s changed position.” They also asserted that they had a “clearly established liberty interest” under the Due
Process Clause of the Fifth Amendment in receiving adequate notice of agency actions affecting their rights and
obligations under federal immigration law, and that they had been deprived of this right without any “process of law”
(e.g., an opportunity for a hearing).
The District Court’s Decision
The district court disagreed, denying the requested TRO because it viewed the plaintiffs as
unlikely to succeed on the
merits of their claims. This decision, in part, reflects what the court itself described as the “stringent standard” applied
in determining success on the merits in cases seeking TROs. However, it also reflects the court’s
finding that the
plaintiffs had not proven that the
Visa Bulletin “determined the rights of adjustment applicants, the obligations of [the
federal government] as to those applicants, and the legal consequences that flow from [DOS’s] calculation of filing
dates.” Thus, the court declined to find that the
Bulletins constituted “final agency actions” subject to judicial review
under the APA. Alternatively, the court suggested that even if the
Bulletins were seen to constitute final agency actions
reviewable by the court, DOS
had given a “plausible explanation” for its actions by noting that the October
Bulletin had
been revised because it “did not accurately reflect visa availability as required for [acceptance of] adjustment of status
applications.” (As noted below, Section 245(a) of the INA permits aliens who are already present in the United States
in a nonimmigrant status to apply for adjustment to LPR status if an immigrant visa is “immediately available” to the
alien. If a visa is not “immediately available,” adjustment cannot be granted at that time.)
The court similarly found that the plaintiffs were unlikely to succeed on their Due Process Claim given the apparent lack
of any legal precedent supporting the view that changes in a DOS bulletin “can trigger a violation of the Due Process
Clause.” The court also noted that DOS had produced evidence “clearly calling into question the reasonableness” of
relying on the
Visa Bulletins to create a legitimate claim of entitlement to apply for adjustment at a specific future date.
In particular, the court noted that DOS had pointed to
differences in priority dates for certain categories of aliens in the
September and October
Bulletins as evidence that aliens could not reasonably expect to rely on the dates given in the
Bulletin because these dates can change from month to month.
Questions Remaining
The litigation in
Mehta continues, notwithstanding the court’s denial of a TRO, and the district court expressly
left open
the possibility that the plaintiffs may ultimately be able to prove certain arguments they could not prove when seeking
the TRO (e.g., that the
Visa Bulletins constitute final agency actions). Such a difference in outcome could occur either
because the plaintiffs have more time to develop the factual and legal basis of their arguments, or because the courts
apply different standards of review in deciding different types of challenges (e.g., TROs, preliminary injunctions, merit
hearings).
On the other hand, while the
Mehta plaintiffs seek the restoration of the filing dates given in the initial version of the
October
Visa Bulletin, others could potentially raise questions about whether these dates themselves reflect a
permissible interpretation of the Immigration and Nationality Act (INA). Two provisions of the INA could be seen to
give DOS certain discretion in setting priority dates. One of these—INA §245(a)—provides for an alien to file for
adjustment to LPR status if a visa is “immediately available,” but does not define what is meant by this term—which
could be seen, under the precedent of
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., to mean that the
Executive has discretion in construing the term. The second provision—INA §203(g)—authorizes DOS to “make
reasonable estimates of the anticipated number of visa to be issued during any quarter of any fiscal year ... and to rely
upon such estimates in authorizing the issuance of visas.” However, there does not appear to be any case law
addressing how much leeway either provision affords DOS in setting the priority dates in the
Visa Bulletin, and as DOS
itself noted in responding to the
Mehta plaintiffs’ claims, the dates given in the initial version of the October
Visa
Bulletin represent an arguably significant departure from the dates given one month earlier in the September
Bulletin.
Such changes in agency practice sometimes factor into discussions of the permissibility of agency actions, as is
discussed in CRS Report R43782,
Executive Discretion as to Immigration: Legal Overview.
Posted at 11/16/2015 10:10 AM