I previously reported on the new Filing Date v. Final Action Date policy of the US State Department and USCIS concerning the quota, and the debacle resulting from the State Department rolling back some filing dates between September 9 and September 25, 2015 for the October 2015 Visa Bulletin.  On September 28, 2015 a lawsuit was filed against the State Department, Mehta v. DOS, in which the plaintiffs sought declaratory relief from the court.  Plaintiffs ask the court to order the State Department to use its September 9 Visa Bulletin because plaintiffs have been injured by the change in dates. The plaintiffs are beneficiaries of employment based visa petitions who are stuck in the quota and affected by the roll-back dates.

On September 30, plaintiffs amended their complaint and sought a temporary restraining order and emergency argument.  On October 2, the government filed its opposition motion.  On October 6, 2015, the court denied the motion for a temporary restraining order, stating: “While the Court appreciates the confusion caused by the two Visa Bulletins published in September and the potentially wasted expenses Plaintiffs incurred as a result, because Plaintiffs fail to meet the critical elements for a temporary restraining order at this time, the Court cannot issue injunctive relief.”

The court also held specifically that: “The Court simply cannot find Plaintiffs are likely to succeed on a due process claim when they cannot point to any law establishing that a Visa Bulletin can create a constitutional right to due process, and Defendants present evidence clearly calling into question the reasonableness of Plaintiffs relying on these Visa Bulletins to create ‘a legitimate claim of entitlement.’ Plaintiffs thus fail to demonstrate a likelihood of success on the merits at this time.” The court also found that Plaintiffs had not shown the required “irreparable harm” for a temporary restraining order, where “’the actions Plaintiffs took in support of their applications [e.g., incurring legal fees and medical exam expenses] would not be losses, but necessary steps in filing their applications.’”

The mechanics of just how the State Department comes up with the Visa Bulletin dates is a mystery to many. In part it is due to a complicated formula built into statute. But also, on any given day around the world, there are people seeking green cards at overseas embassies and consulates as well as before USCIS in adjustment of status applications.  When a preference case is officially granted by a consular or USCIS officer, a number is “pulled” or subtracted from the total number of visas available. But, also, on any given day, some cases may be continued for one reason or another or are denied.  Keeping track of visa use worldwide is an arduous task. For example, one of those continued cases this month might be granted next month.

There is one key person, among others, Charles Oppenheim, who is the Chief of the Immigrant Visa Control and Reporting at the State Department responsible for coming up with the Monthly Visa Bulletins, which are, after all, really predictions, not certainty, about visa use in a given month.  While it is the State Department that keeps track of the visa/green card issuance, State must also work with USCIS that adjudicates green cards in the USA. In addition, State works with its internal agency, the National Visa Center, that orchestrates the paperwork with the consulates, to determine what cases are in its pipeline awaiting quota backlogs to become current.  That cross-agency record keeping and predicting can be difficult. In addition, over time there can be surges of applications filed due to other changes in law or movement of the quota. Many people think that if Mr. Oppenheim was hit by a bus, there is no one else out there that knows as much as he does about the complexities of visa use and predictions.  Mr. Oppenheim provided a declaration to the court that is worth a read. It seems that the impetus to rolling back the Visa Bulletin dates for October were based on a request from USCIS based on its own interpretation of data as to the numbers of people likely to file adjustment of status applications over the next fiscal year.