Dept. of State Leaves Immigrants in Lurch, Class Action in the Works

Immigration is never easy, and it can take years to file the proper paperwork, pass required financial and health tests, and finally start a life in a new country. For thousands of workers every year, obtaining a U.S. green card authorizing work and residency in the United States is a difficult dream – so, when the Department of State issued a Visa Bulletin (a guide to the most recent immigration regulations and policies) that cut years off the process for specific nationalities, many were ecstatic – and quickly began working on their applications.

Sadly, that work may have been in vain. Whether through a mix up or a change of policy, a revised Visa Bulletin was issued just days before the original was due to come into effect, reversing the policy changes and adding years back to the process. The change, many immigrants say, is unfair and gives far too little time for people to once more adjust their plans. Now, a class action lawsuit has been filed on behalf of immigrants from China, Philippines and India, seeking to change the requirements again and allow workers to bring their applications forward.

As part of a green card application, foreign workers must first gain permission to work, which is limited to a few years. After this, a process called “Adjustment of Status” allows workers to gain a full green card, freeing them to change employers and to travel outside of and return to the United States. “Adjustment of Status” can only be granted if applicants fulfill specific requirements, including having resided in the country for a set amount of time. It’s a time-consuming (and expensive) process, which goes some way in explaining the relief felt when the October 2015 Visa Bulletin seemed to cut the time required to apply for “Adjustment of Status” by two years for Indian nationals, 16 months for Chinese nationals, and five years for Philippines nationals. Many hailed it as a positive step and, perhaps, a sign that the United States’ often convoluted immigration process was finally being streamlined.

Well – no.

On September 28, four days before the new and faster rules were to take effect, the bulletin was revised and the old requirements were put back in place. The U.S. Department of Homeland Security has said that the revised bulletin was issued to clarify a previously incorrect statement, but for the thousands of workers who felt they were days away from becoming eligible to apply for “Adjustment of Status” – and who incurred the costs associated with preparing an application - the sudden U-turn was a step too far. They’ve now filed a class action lawsuit against both the Department of State and the Department of Homeland Security.

In making their case, plaintiffs in the suit, which has been filed in the State of Washington, point out that Visa Bulletins have never been revised in this way before, therefore giving visa applicants reasonable cause to believe the policy change could be trusted. They also argue that by preparing medical records, engaging attorneys, and making work and travel plans for their applications, they were put out of pocket for a number of costs – and it all now seems to be for nothing.

The lawsuit also accuses the government departments of depriving applicants of their due process rights by acting in an “arbitrary” manner and failing to provide “adequate notice” of the significant change, as required by Administrative Procedure Act. As part of the lawsuit, the fourteen plaintiffs, all Indian nationals, requested a temporary restraining order that would require the Department of Homeland Security to accept applicants for “Adjustment of Status” that could have been submitted before the revised bulletin was published. This, however, has been denied by the court. For now, the new rules (which are, in fact, the old rules) stand, and workers from China, Philippines and India are faced with an extended wait before the next stage of their lives in America can begin. The lawsuit is seeking compensation for costs associated with the green card applications that now cannot be submitted.

Let’s be clear on one thing: The Department of State has acted egregiously here, not necessarily by requiring a long wait before approving green card applications, but by offering false hope and then turning their backs on workers who were trying their best to follow the rules. Immigration is an expensive process – and preparing to adjust status requires more fees, more paperwork, and a huge amount of time. Even if the rules were published by mistake, to issue a correction with less than a week to go shows a disregard for the people the policy is designed to serve and a shameful lack of basic empathy. Should the United States let in everyone who wants to immigrate? No. Should it have clear, sensible policies that allow good workers to build new lives? Yes – and arbitrary, harmful policy changes do nothing but hurt the country. Whether the lawsuit will succeed or not, it’s not hard to see why the plaintiffs are frustrated and they should be commended for trying to work within a system that’s already shown how flawed it can be.