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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Now You See It, Now You Don't: What's Really At Stake In The Visa Bulletin Controversy

by Gary Endelman

Is it time to exhale yet? After all, we got what we wanted, right? The USCIS backed down, visa numbers for July are current once again in all employment categories and we can file for adjustment of status all the way to August 17th. With all of that, when do we party? No, we are still worried? I don't believe it! Doesn't anything satisfy us? As we all learned at our mother's knee, if something seems too good to be true, maybe it is. So, so let's step back and take a second look at the great Visa Bulletin controversy of 2007 to see what is really at stake.

Before we jump in, just to set the stage for our drama, perhaps a brief primer in basic green card law is in order. The Immigration and Nationality Act doles out 140,000 employment-based immigrant visas each year. [1] Only when a visa is immediately available can someone file for adjustment of status to lawful permanent resident. [2] How do you know if a green card number exists, you ask? Simple. Just look at the Monthly Visa Bulletin from your friendly State Department. You know that your preference category is current if your place in line, known in immigration lingo as a "priority date" is earlier than the date shown in the Visa Bulletin.[3] Now another interesting question: When is this available visa actually used? Well, there is an ready answer for that too. If you think the answer is that a visa is used at the time of application, think again. The correct answer, and I hope you are taking notes, is that an immigrant visa number is not assigned until the USCIS actually decides to approve the adjustment of status. [4] That is why your ever-prudent USCIS adjudicator does not request the precious visa number until immediately before final green card approval. [5] Now, doesn't this system of rigorous and robust qualify control make all of us feel better?

Now, that we know all this, it should come as no surprise that the peel of church bells resounded joyfully throughout the land on June 12th when the State Department issued a visa bulletin for July that made all priority dates current for employment-based immigrant petitions. Glory Hallelujah! At long last, immigrant petitions could be filed by solicitous employers for anxious aliens concurrently with the adjustment of status applications. [6] Thunderstruck as we all were by this great good fortune, we rushed to prepare our green card cases, secure in our reliance upon a Visa Bulletin that, after all, we knew in our bones could never be changed. Sure, it all seemed too good to be true, but why worry? I mean, after all, what was the State Department going to do? Issue an amended July Bulletin? FORGETABOUTIT! as we are found of saying down on the banks of the Perdenales.

Well, we all know what happened next. Come bright and early on Monday morning July 2nd, we fire up our computers only to learn that our worst fears had come true: the State Department was now telling us in an amended July Visa Bulletin that no green card numbers were available, not just for July but for August and September as well! Now, exactly how in the name of Andy Jackson and the Continental Congress could this happen? How could the USCIS request 68,000 visa numbers in a matter of weeks? I mean, this was more than the Agency had used in the first 8 months of the year! [7] After asking the Visa Office for 66,245 green card employment numbers since October 1st, or an average of 8,303 per month, the USCIS devoured 66, 425 visas from June 12-July 2nd. [8] Isn't Service Center overtime a wonderful thing? Perhaps the prospect of losing the benefit of the anticipated USCIS fee hike on July 30th [9] also served to inspire the troops to such unprecedented productivity. That, and the willingness of USCIS to ask for visa numbers before FBI name checks came through, something that had to happen before final approval, undoubtedly helped.

Maybe this tsunami of activity was precisely what the Visa Office in the State Department had in mind on June 12 when it offered its rosy forecast on availability of employment-based immigrant visas. In explaining why he had made all categories current for July, Charles Oppenheim hoped to "generate increased demand by Citizenship and Immigration Services (CIS) for adjustment of status cases, and to maximize number use under the annual numerical limit." [10] Now, there is something mighty curious about this. Why, one wonders, did State think that USCIS needed incentive to use all the green card numbers that Congress gave it? Inquiring minds will not have to look long or hard to find the answer. Prakash Khatri, the USCIS Ombudsman, gave it to us on June 11th, the very day before the original July Visa Bulletin came out, in his Annual Report to Congress:

When employment-based visas are not used during the year they are authorized, they are lost and not available for future use with- out special legislation. In FY 06, over 10,000 employment-based visas were lost, even though USCIS had an estimated 100,000 to 150,000 pending applications for employment-based green cards. Based on USCIS use of visa numbers as of May 2007, at present consumption rates, approximately 40,000 visas will be lost in FY 07 without a dramatic increase in USCIS requests of visa numbers. As illustrated below, since `1994 there have been over 218,000 un- recaptured employment-based visas due to underutilization... [11]
So, an agency that has squandered over 200,000 green card numbers suddenly asks for numbers at an unprecedented rate. Did the USCIS use these numbers? Some experts believe that, as early as July 5th, or just 3 days after the revised July Visa Bulletin, USCIS began returning unused visa numbers to the State Department. The marvelous investigative reporter, Jay Solomon Esq. of Atlanta, offers this muckraking insight:
However, already this month, the USCIS has been returning visa numbers. This confirms our earlier suspicion that the only way the USCIS could request 68,000 visa numbers in a matter of weeks was to request them in advance of adjudicating cases. We believe USCIS exhausted the visa numbers by simply requesting them-not by using them. If so, we believe that over 30,000 visa numbers requested by USCIS will go unused- and will be wasted this year. [12]
OK, so they made some mistakes, but their heart was in the right place and, in any event, on July 17th, the USCIS announced that, beginning immediately, it would "accept employment-based applications to adjust status filed by aliens whose priority dates are current under the July Visa Bulletin NO. 107. The USCIS will accept applications filed not later than August 17, 2007." [13] If we got what we wanted in the end, what's the big deal? Why do we still care about the great Visa Bulletin controversy of July 2007? Consider the following bill of particulars:
  1. Do not be lulled into a false sense of security by the reference to August 17th. Unless you establish your priority date in July, through the filing of an immigrant petition, your adjustment of status application filed in August will be sent back for lack of a currently available visa number. Would it not have been more transparent for the USCIS to say as much in its July 17th announcement?


  2. How does the August 17th date play out for a consular processing case? Suppose the I-140 is filed in July. When does the application for the immigrant visa at a US Consulate take place? Does this also have to be before August 17th? That is impossible. Is USCIS then saying that, in order to take advantage of the 30 day window, everyone must file for adjustment of status? What is the authority for imposing such a choice?
  3. If you file your I-140 immigrant petition in July, but wait until August 16th to submit the adjustment of status, what proof of a current priority date will you be able to provide? Given the enormous volume, it is unlikely that the I-140 receipt will come back in time? The only answer is to use electronic filing which generates an instantaneous receipt that can be used with the subsequent adjustment submission. Beyond that, you should have 7 business days, or until August 9th, to submit supporting documentation to bolster your I-140 efiling. One hopes that the USCIS will not shut down efilng much as it suspended premium processing of I-140s in anticipation of the avalanche about to descend upon it.


  4. What fees should you use? True that the USCIS announcement does generously allow that the "current fee schedule will apply to all applications…filed through August 17, 2007…" However, that generosity may turn out to be a bit less expansive that it appears on first glance since the "applications" are likely to be only the adjustment of status application itself, as opposed to the I-131 advance parole and I -765 employment authorization document. Remember that, with any adjustment filed on or after July 30th, there is no separate fee for ancillary benefits like I-131 and I-765 that are filed with the adjustment itself. If you send in one check and the total if off by even a penny, the whole case gets sent back and the August 17th deadline has come and gone. Send in separate checks so that if one application is returned, everything else stays there. Hopefully, fee guidance from USCIS will soon be forthcoming.


  5. What happens to those kids who aged out during the July-August period as a result of the delay in ability to file for adjustment of status?


  6. How about the Section 245(k) harm done since arguably there would not have been any unauthorized employment had USCIS respected the integrity of the June 12th Visa Bulletin ?


  7. The fate of those H1B aliens who filed for a three year extension between July 2 and July 17th is entirely undecided. Under the American Competitiveness in the 21st Century Act, only if there is a backlog in visa availability will USCIS grant a 3 year extension of H1B status. Does USCIS approve or deny an H1B extension filed on July 3rd in reliance upon the announcement that visa numbers had been exhausted but still pending on July 17th ? For that matter, can such an H-1B extension request be lodged on August 1st, since the Visa Bulletin for that month says no visas are available, or does the alien have to wait until August 17th when the 30 day window on acceptance of adjustment of status application closes? What happens if the H1B status expires between August 1st and August 17th?
Beyond the specifics, there is the larger question of the damage done to the consistency and predictability of the system when the USCIS can change the rules of the game without any advance notice or opportunity for public comment? Is such action likely to promote public confidence in the rule of law? The actions of the USCIS raise serious separation of powers questions for, if the Executive Branch can unilaterally shut down the green card pipeline, decisions made by Congress on the number of immigrant visas to be released in any fiscal year are null and void. This is an issue of the highest importance and deserves prompt and thorough Congressional review. It should be the Congress, not the USCIS, who decides how many aliens get to apply for green cards. At the very least, the Congress should either mandate the recapture of all unused visa numbers or allow for their carry over from one fiscal year to the next.

In the end, the only way to make certain that this whole mess never happens again is to attack the problem at its root cause, namely to end the primacy of the priority date as the alpha and omega of the entire process. Take away the tyranny of the priority date and you defang the Visa Bulletin. Allow for the submission, but not the final approval, of an adjustment of status application without any requirement of immediate visa availability and the State Department can revise its visa estimates as much, as often, or as dramatically as the USCIS wants it to. At the same time, Congress must amend the Child Status Protection Act so that the absence of a current priority date does not mean that a wholly innocent child will age out simply because the USCIS decides to request a visa number before the FBI name check has cleared and before the case is ripe for decision. That is not all. If you can apply for the green card regardless of visa availability, the alien can take advantage of adjustment of status portability so that true occupational mobility no longer is held hostage to the all mighty Visa Bulletin. This state of affairs will allow much of what the green card provides- freedom to work, live and travel without artificial constraint- without any increase in the employment-based immigration quotas.

Congress really has no choice but to do this. It must amend Section 245(a) of the Immigration and Nationality Act unless it wants the system to collapse of its own weight. Listen to what USCIS Ombudsman Prakash Khatri said in the 2007 Annual Report to Congress on visa wait times:
If the priority date became current today, due to delayed USCIS processing and thus underutilization of visa numbers, some have predicted that, within a few months, as many as 500,000 to 700,000 individuals now residing in the United States under a temporary work visa could apply for a green card. Additionally, DOL's recent backlog elimination efforts, scheduled to be completed by September 30, 2007, are predicted to add 70,000 or more Approved labor certifications yielding as many as 170,000 additional green card applications. As USCIS begins to complete these applications and request visa numbers from DOS, the 140,000 statutorily authorized visa numbers will be used. DOS will then be required to retrogress priority dates. Consequently, most applicants in this scenario will find themselves trapped where as they anticipated timely receipt of a green card , their wait exceeds seven or more years. In addition, all future employment-based green card applicants effectively would be barred from applying for many years. [14]
Congress can save the employment based immigration system, and protect the USCIS from itself, by slaying the hydra-headed priority date monster. If I may offer this gentle wisdom to our friends on Capital Hill and at the USCIS taken from King Solomon's Book of Proverbs: " He who troubleth his own house shall inherit the wind."


Endnotes

1 8 USC Section 1151 (d)(1)(A)

2 8 CFR Section 245.2(a)(2)(i)(A)

3 8 CFR 245.1(g)(1). You can find archived monthly visa bulletins since January 10. 1994 on the State Department website. See http://dosfan.lib.uic.edu/ERC/visa_bulletin/.

4 8 USC Section 1255(b)

5 8 CFR 245.2(a)(5)(ii)

6 8 CFR 245.2(a)(2)(i)(C)

7 Kudos to the magnificent detective work of Jay Solomon in getting to the truth. http://www.usimmlaw.com/When%20do%20I%20get%20my%20green%20card.htm

8 Alan Lee, " Details Leaking Out on July Visa Chart Fiasco Show Extraordinary and Legally Questionable Steps by USCIS to Exhaust Visa Numbers to Protect Fee Hike Collections," http://www.ilw.com/articles/2007,0716-lee.shtm

9 On July 30th average USCIS processing fees will soar by 66%.

10 Visa Bulletin No. 107, Vol VIII entitled " Visa Bulletin for July 2007"( June 12, 2007)

11 http://www.ilw.com/immigrationdaily/news/2007,0619-ombudsman.pdf . This select quote came from pages 33-34.

12 http://www.usimmlaw.com/visa_numbers_retrogress.htm (posted on July 11th)

13 The USCIS Announcement is posted on their website: http://www.uscis.gov

14 http://www.ilw.com/immigrationdaily/news/2007,0619-ombudsman.pdf This select quote comes from page 35 and is also cogently explained by Jay Solomon at http://www.usimmlaw.com/When%20do%20I%20get%20my%20green%20card.htm


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