Federal Appellate Court Opinion Offers a Peek Behind the Priority Date Cut-Off Curtain

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A recent opinion issued by the United States Court of Appeals for the District of Columbia Circuit (March 10, 2015) offers a little insight into the process involved in setting Visa Bulletin cut-off dates. Kind of. Actually, not at all. Which is the point of the Court’s opinion.

In Xie v. Kerry, the Plaintiff alleges the Department of State is not properly setting Visa Bulletin cut-off dates, and in the process is illegally delaying the review of visa applications filed by people in certain immigration categories. The District Court initially dismissed the complaint, but the Circuit Court reversed the decision and re-opened the case, saying the Plaintiff’s allegations deserve further review.

What is interesting about the opinion are the Court’s comments about the lack of information relating to the process used to set Visa Bulletin cut-off dates. The Court was particularly unhappy about the inability or unwillingness of the parties (translation: the Department of State) to explain the process. The Court  says the parties have  been “distinctly obscure” about the interaction of the various country limits as they pertain to setting cut-off dates and suggests that “as to the determinants of the length of immigration queues, the record provides little more than a black box”.

Hello! That’s what we’ve been saying for years!

The Court adds that “the parties haven’t furnished any relevant regulations which would reveal State’s view of how it meshes the categorical caps, the priority rule, and other statutory directives, much less the thinking behind that view, and we have found none that do. When we asked for such regulations at oral arguments, counsel for State said he knew of no elucidating regulations.”

Could that be because there are none? I once heard someone say the process used to set cut-off dates was more witchcraft than science. I’m not sure I’d go that far, but I’m getting there, especially in light of developments this week with the retrogression of the EB-3 Philippines category. Seven years in a month? Crazy.

The Appellate Court closes the opinion by saying that it is not deciding at this point whether or not the Department of State is acting illegally; it is only saying that “the consequences of State’s current operations are quite consistent with [the Plaintiff’s] allegations that [the Department of State] has inadequately heeded [section] 203(e)(1)’s priority principle”.

The Court concluded no final decision can be made in the case until “State’s interpretation and application of the relevant provisions are reasonably clear”, at which point the lawfulness of their actions can then be assessed. The case was then sent back to the District Court for further proceedings.

Does this mean the Plaintiff has a good chance of winning? It’s hard to say. However, for the rest of us, the benefit of this decision is going to be the requirement that the Department of State provide more insight into how it goes about setting cut-off dates in the Visa Bulletin. We can’t wait for the day when “State’s interpretation and application of the relevant provisions are reasonably clear”.

It’s time to pull back the curtain. We can’t wait!

This post originally appeared on Hammondlawgroup.com. Reprinted with permission.

About The Author

Dwight Myfelt

Dwight works primarily in the area of business immigration relating to health care issues, particularly for physical therapists and nurses. He is married and has three children.