Comment: Explaining Visagate
Immigration Daily's advisory board member Greg Siskind provides the following hypothesis to explain the recent Visa Bulletin changes:

Since the beginning of the Visagate controversy, something has bothered me about the explanation USCIS has been offering. Our own number crunching Visa Bulletin wonk has come up with a number just over 29,000 as the number of EB-2 India and EB-2 China numbers that will be available in Fiscal Year 2016 and likely demand just over 30,000 if a July 1, 2011 acceptance date is used. So Charlie Oppenheim's original Visa Bulletin would have been right on target.

USCIS forced a revision that that date to July 2009. That's a date that has been hit three times in the past so the number of people who would file now is going to be fairly small. Most people wouldn't have missed the train three times. But there are likely some EB-3 to EB-2 upgrades, people who had appeals pending and weren't eligible to file adjustments before and people whose I-140s may have been revoked and who have had to refile again. Basically, a small group of applicants. Our number cruncher is predicting about 5,000 applicants under the new acceptance dates. If there was a stash of pending adjustment applications pending that Charlie Oppenheim failed to consider (USCIS made this claim last week in its reply brief to our filed lawsuit), why pick a number so ridiculously skimpy? Why not just pick a date that's more modest, but later than the virtually useless dates they settled for the September 25th version of the Visa Bulletin?

And then it occurred to me that USCIS might have found a theory that would allow then to take virtually no early applications and still claim they are on board with Visa Bulletin modernization. Visa Bulletin modernization is about allowing people who the Department of State and USCIS believe will have an immigrant visa available within the fiscal year to file adjustment applications. That is designed to maximize the number of green cards that are issued in a year. And it is also a way to give relief to people waiting years for their green cards to get the benefits of an adjustment application earlier.

What is that theory? Under the Immigration and Nationality Act, 28.8% of the 140,000 employment-based green cards are available in the EB-2 category. That's 40,320. Per country limits of no more than 7% going to a country mean that the maximum Indians and Chinese are guaranteed is 2,820 each. We know a lot more than 2,820 Indians and Chinese are going to get green cards in FY 2016. That's because numbers flow to EB-2 Indians and Chinese from many places - from the lightly used EB-1 category, from unused EB-2 numbers from other countries, from leftover family numbers, etc. Charlie Oppenheim at DOS doesn’t know precisely what those numbers are going to be (neither did our number cruncher), but he can take some pretty educated guesses.

I suspect that USCIS (and possibly DOS lawyers) are taking the position that they are only going to allow adjustments for numbers that are truly guaranteed. And that would be limited to the 5,640 green cards available under the per country EB-2 quotas to Chinese and Indian nationals. Which would make a July 2009 acceptance date perfectly logical. Even though any reasonable person would agree that there are going to be a lot more visas available than 5,640 (and, as we indicated, we came up with a number almost six times higher), USCIS and DOS could claim that Section 245(a) requires a visa number to be available and the only numbers we know for sure are available are those 7% numbers. Even though it is virtually 100% guaranteed a lot more numbers are going to be available, the only number anyone can say for sure is that 7% will be available to each nationality.

I came up with this idea yesterday, but wasn't sure how to see if it was true other than getting USCIS to admit it.

And then the November Visa Bulletin was released. USCIS claimed that the EB-2 numbers moved backwards on September 25th because green card numbers retrogressed and Charlie Oppenheim failed to account for this in his October Visa Bulletin. EB-2 cutoff dates for India did retrogress between September and October from January 1, 2006 to May 1, 2005. We were suspicious of USCIS claiming this was the reason for the new dates because Charlie has retrogressed numbers several times in the past in October only to move them up again the following month.

That's what happened today. Cut off dates in both the EB-2 Indian and EB-2 China categories advanced. EB-2 India jumped by 14 months to August 1, 2006. But acceptance dates remained unchanged. How could this be? It makes perfect sense if USCIS is taking the position that they only can use a maximum of 2,820 numbers for India and another 2,820 for China versus the 29,000+ available under the more sensible reading Charlie Oppenheim was using for the first Visa Bulletin.

This, of course, is a way to twist what President Obama was aiming for with his executive action. The 7% limit will have virtually no impact on ensuring all green cards are issued each year and only a very small number of people will get the advantage of filing an adjustment application early.

It would also be a big, big problem for USCIS which offered a very different explanation of its actions in its response to our request for a Temporary Restraining Order.

This new reading of Section 245(a) by USCIS is a very different view Section 245(a) than the agency has taken in the past. In the summer of 2007, USCIS managed to accept 300,000 adjustment applications even though only 140,000 green cards are available for a whole fiscal year and 75% of the fiscal year was over by that point. And just last month, USCIS announced that it had used up all green card numbers for the fiscal year, but it would still accept applications for the remainder of September (about five days). Under the agency's interpretation of Section 245(a) it's using to explain Visagate, neither of these things could have happened. Presumably, they were using the Cyrus Mehta Thanksgiving Turkey theory when it suited them.

I don't claim that I know for a fact that this is what's going on. But it's the only explanation that fits our numbers and explains why we saw no movement of the acceptance dates between October and November even though the cut off dates (at least for India) jumped substantially.

Share your thoughts by writing to editor@ilw.com.

Article: Good News for EB-5 in November 2015 Visa Bulletin! By Bernard Wolfsdorf, Esq.

Article: AAO I-129 Non-Immigrant Worker Non-Precedent Decisions (New Format) Posted As Of Thursday, October 1, 2015. By Joseph P. Whalen

Blogging: One Theory Explaining Visagate. By Greg Siskind

Blogging: IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN. By Chris Musillo

News: DOS Notice on Registration for the Diversity Immigrant Visa Program

Focus: The EB-5 Book 2014-2015 Edition Shipping Now
The 2014-2015 Edition of The EB-5 Book is shipping Now! The editors are Matt Gordon, Angelo A. Paparelli, and L. Batya Schwartz Ehrens. Articles by Laura Bronstein, Laura Danielson, Michael Dunn, Robert Gaffney, Adam D. Gale, Steve Ganis, Sherman E. Golden, Douglas Hauer, Jennifer Hermansky (Jen), Parisa Karaahmet, Mark Katzoff, Lily Li, Daniel B. Lundy, John Neill, Chun Yun ("Elizabeth") Peng, John Roth, Paul Ruby, Sarah A. Schroeder, Reid Thomas, Gregory White, and Ben Zou.

The new edition includes two articles on Chinese retrogression and its consequences - the only EB-5 book with articles written on retrogression AFTER DoS's announcement of retrogression.

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  • Introduction By: Matt Gordon
  • The Numerical Limits on EB-5 Visas for Natives of China, and the Likely Effects of a Quota Backlog on the EB-5 Industry by Daniel B. Lundy
  • EB-5 China Retrogression: Considerations for Investors and Regional Centers by Parisa K. Karaahmet and Sarah A. Schroeder
  • Practical Approaches to Lawful Source of Funds Issues by Robert P. Gaffney
  • Source of Funds: Understanding and Vetting Your Investor's Background by Ben Zou and Laura Danielson
  • I-526 Petitions Practice Pointers by Paul Ruby and Lily Li
  • How to Successfully Represent Chinese Investors in EB-5 Cases by Elizabeth Peng
  • I-829 Practice Pointer: Removing Your Investors' Conditions by Elizabeth Peng and Jennifer Hermansky
  • Use of Escrows in EB-5 by Reid Thomas
  • Attracting Investors: What Investors Want in an EB-5 Regional Center by John Roth
  • Relevance of US Securities Laws to the EB-5 Marketplace by Sherman Golden and Michael Dunn
  • FINRA Guidance on Applicability of the Suitability Rule to Broker-Dealers Marketing Private Placements by Douglas Hauer, Steve Ganis, and Adam Gale
  • Hot SEC Topics in EB-5 Financings by Gregory White, Mark Katzoff, and Angelo Paparelli
  • EB-5 Regional Center Job Creation Requirements by John Neill
  • Role of the Business Plan and Plan Writer by Angelo A. Paparelli and L. Batya Schwartz Ehrens
  • I-924 Process, Tips, and Best Practice by Angelo A. Paparelli and Brandon Meyer
  • Choosing the Corporate Structure, Management Issues, and PPM Due Diligence by Louann Bronstein
  • The EB-5 Attorney as Financial Adviser: A Practical Guide by John Roth
  • Learning from the History of Risk and Fraud in the EB-5 Regional Center Context by Robert Loughran

II. Resource Material

  • Section 1: Cases
  • Section 2: Forms
  • Section 3: Memoranda

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  • Statutes
  • Regulations
  • Federal Court Cases
  • BIA Cases
  • Forms
  • Memoranda
  • Weblinks
  • Miscellaneous

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ComingsNGoings: Immigration Event
October 15, 2015, 3pm (Eastern). Migration Policy Institute (MPI will hold a webinar on "Unaccompanied Child Migrants in the United States: How Are They Faring?" Join this webinar for the release of a new Migration Policy Institute brief that offers data and a qualitative research summary on where unaccompanied child migrants are being placed, how they are faring in immigration courts, what types of services are available to them, and how school districts and communities are adapting to their arrival. For more information and registration see here.


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Publisher: Sam Udani ISSN: 1930-062X
Advisory Board: Jason Dzubow, Rami Fakhoury, Matthew Kolken, Chris Musillo, Lory Rosenberg, Greg Siskind, Joel Stewart, Margaret Wong