Comment: Endelman On EB Adjustments - We are pleased to carry a guest comment by Gary Endelman.
Despite an initial announcement that all EB numbers had been exhausted, people can still file EB adjustments for the rest of September if they are eligible and have a current priority date. As the regulation cited below indicates, it is the Visa Bulletin that determines visa availability. An announcement cannot trump a regulation. As the State Department memo makes clear, adjustments can continue to be filed and will be held in the Visa Office's "Pending Demand" file for Oct 1 when new numbers will be released for FY 2012. It is commendable that the USCIS has clarified this in today's public announcement, though it came a bit late and, even then, without a reference to 8 CFR 245.1(g)(1).
8 CFR 245.1(g)(1) Availability of immigrant visas under section 245. An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. A preference immigrant visa is considered available for accepting and processing if the applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
This is not the first time that such a confused state of affairs has erupted. Doubtless, the great Visa Controversy of July 2007 comes readily to mind. It is a good idea for lawyers and applicants to continue to send in EB adjustments in if only to get in line when new visa numbers do become available on Oct 1 with the advent of FY 2012.
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