The October 2015 Visa Bulletin brings U.S. Citizenship and Immigration Services (“USCIS”) into the 21st century, and in line with the longstanding DOS practice, by adding a date on which applicants may submit adjustment of status applications (“adjustment applications”) that comes before the projected date on which final adjudicative action will occur. By adding this additional date for filing adjustment applications, DOS is better able to discharge its statutory duty of assessing visa demand and ensuring all of the visas Congress allots in a given fiscal year are used.

In reasonable reliance on the October 2015 Visa Bulletin, Plaintiffs and thousands of others began assembling their adjustment applications. They went to USCIS-approved civil surgeons to obtain medical exams, vaccinations, and certificates, arranged for provision and translation of documents from their home countries, paid attorneys, took time off work, and cancelled upcoming travel plans. Plaintiffs and class members took all these actions based on their reasonable expectation—created by over five decades of uniform practice—that the government would abide by the Visa Bulletin it published on September 9, 2015. On September 25, 2015—less than 4 full business days before USCIS was to begin accepting adjustment applications under the October 2015 Visa Bulletin—Defendants broke their promise. State abruptly revised the Visa Bulletin, significantly altering several of the filing dates, and leaving Plaintiffs and potentially thousands of others without recourse.

As a result, Plaintiffs and class members are now suddenly unable to submit adjustment applications on October 1, 2015 as promised, and consequently, they are unfairly locked out of the significant statutory and regulatory benefits afforded to people with pending adjustment applications. Because State’s attempted revision constitutes arbitrary and capricious agency action contrary to law, as well as an abuse of the agency’s discretion, and violates Plaintiffs’ due-process rights, the Administrative Procedure Act (“APA”) requires that the revised Visa Bulletin (the “Revised Visa Bulletin”) be struck down and that USCIS be compelled to accept adjustment applications pursuant to the original October Visa Bulletin.

Accordingly, Plaintiffs seek declaratory and injunctive relief preventing Defendants from enforcing the unlawfully issued Revised Visa Bulletin.

Because the Visa Bulletin has never been permanently revised after issuance in a way that adversely affected applicants’ ability to rely on it for guidance on when they can file their adjustment applicants, the practical effect of publishing the Visa Bulletin and triggering the Preparation Period is to immediately induce immigrant visa applicants, their attorneys, and government agencies to take affirmative preparatory steps in reliance on the Bulletin.

In July 2015 the White House announced:

Later this year, State, in consultation with DHS, will revise the monthly Visa Bulletin to better estimate immigrant visa availability for prospective applicants, providing needed predictability to nonimmigrant workers seeking permanent residency. The revisions will help ensure that the maximum number of available visas is issued every year, while also minimizing the potential for visa retrogression. These changes will further allow more individuals seeking LPR status to work, change jobs, and accept promotions. By increasing efficiency in visa issuance, individuals and their families who are already on a path to becoming LPRs will have increased security that they can stay in the United States, set down roots, and more confidently seek out opportunities to build lives in our country.

Following through on the promise of this announcement by the White House, on September 9, 2015, DOS published the October 2015 Visa Bulletin, which included critical substantive improvements. On September 9, 2015—the same day the State Department released the October 2015 Visa Bulletin indicating USCIS would accept adjustment applications in accordance with the filing date chart—USCIS published the Dates for Filing Applications listed in the October 2015 Visa Bulletin on its website at the address listed in the Visa Bulletin.

In reliance on the government’s modernized Visa Bulletin, thousands of highly skilled Chinese and Indian employment-based immigrant visa applicant began the timely, costly, and disruptive process of gathering documentation, obtaining medical certificates, and filling out applications.

On September 25, 2015, less than four business days before thousands of immigrant visa applicants and their attorneys could begin sending adjustment applications to USCIS in reliance on the October 2015 Visa Bulletin, the Department of State abruptly issued a Revised Visa Bulletin. The Revised Visa Bulletin alters the filing dates for six categories of immigrants. The Revised Visa Bulletin thus significantly reduces the number of applicants who will be able to file adjustment applications on October 1, 2015. Similarly, the Revised Visa Bulletin eliminates two years’ worth of Indian EB-2 applicants from eligibility to file by retrogressing the cut-off from July 1, 2011 to July 1, 2009. The Revised Visa Bulletin provides applicants no reasoned explanation whatsoever for DOS’s radical recalculation.

On information and belief, no material change in fact that would justify altering the filing dates in the October Visa Bulletin occurred between September 9, 2015 and September 25, 2015. Rather, all of the information that was available to DOS in making its calculations in the Revised Visa Bulletin was also available to the agency prior to issuing the October Visa Bulletin. Accordingly, Plaintiffs seek declaratory and injunctive relief that Defendants’ actions in abruptly and inexplicably rescinding the October 2015 Visa Bulletin are arbitrary, capricious, contrary to law, and an abuse of discretion.

The complaint also alleges, “Defendants afforded Plaintiffs no process of law before or after depriving them of their constitutionally protected liberty interest,” in violation of the 5th Amendment.

The requested relief is as follows: “A. the Court declare that Defendants’ arbitrary revision of the October 2015 Visa Bulletin constitutes unlawful agency action in violation of the Administrative Procedure Act; B. the Court declare Defendants’ failure to afford Plaintiffs of timely, adequate notice of changes to the October 2015 Visa Bulletin violates their constitutionally protected liberty interest without due process of law; C. the Court enter a temporary restraining order, then preliminary and permanent injunction enjoining Defendants from enforcing the Revised Visa Bulletin, and requiring USCIS to accept adjustment of status applications in accordance with the October 2015 Visa Bulletin.