Comment: Visa Bulletin projections fail Daubert standard

DOS officials, such as Mr. Charles Oppenheim, are perceived as experts on the Visa Bulletin because they are responsible for authoring the Visa Bulletin. However, a federal court of law would not view the matter quite so simply. DOS officials responsible for and instrumental in publishing the Visa Bulletin are by definition experts on the CURRENT visa bulletin, because they were instrumental in publishing it. However, under federal court evidentiary standards, they are NOT experts in projecting FUTURE visa bulletins. We repeat, DOS officials are not qualified to offer an expert opinion on future visa bulletins, under applicable court precedents.

Under the applicable Federal evidentiary standards, if a DOS official were speaking before a federal court, his/her testimony on future Visa Bulletins would be excluded--on the grounds that it fails to meet the standard for expert testimony set forth in the controlling Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

Under the Daubert standard, the factors that may be considered in determining whether the testimony of an expert witness is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

DOS’s methodology for prognosticating about future Visa Bulletins does not meet the Daubert standard:
(1) whether the theory or technique in question can be and has been tested: The visa bulletin projections methodology has not been tested
(2) whether it has been subjected to peer review and publication: The methodology of arriving at the projections have not been subjected to peer review or publication
(3) its known or potential error rate: The error rate is not known or documented
(4) the existence and maintenance of standards controlling its operation: There is no publicly known standard for arriving at the projections.
(5) whether it has attracted widespread acceptance within a relevant scientific community: There is certainly no widespread acceptance of the methodology and Immigration Daily contests DOS’s methodology for future projections for the reasons set forth below.

Our objection to DOS’s prognostication methodology is informed by our view as to the proper approach to the problem of forecasting future visa bulletins. A mathematical modeling that begins to approach the problem would need to be done in three steps:

(1) Modeling of Demand & Supply for the visas across the world: This requires modeling of worldwide economic behavior--which is beyond the expertise of immigration professionals. The projections are dynamic due to the fact that usage by other countries for EB5 visas shapes the availability of visas for a given country like China or India--so a model that does not include visa usage by other countries does not meet the Daubert Standard, since the total available for China, India etc, is affected by how many visas are used by a multitude of smaller countries. For example, if the demand for visas in other countries for EB-5 increases dramatically, the wait time for Chinese EB-5 investors could shoot up to 40-50 years, and if the demand in other countries were to plummet the wait time for EB-5 for China would not be anywhere near as long as that. Note that the demand and supply modeling would of necessity need to be country by country - an exercise that is complex prima facie.

(2) Modeling of DOS consular processing and USCIS processing: While the DOS processing is readily available and is well understood, the data about USCIS processing is incomplete and inaccurate. Perhaps any criticism of DOS projections that depend upon USCIS data is not warranted because no one can make good projections based on bad data. The severe problems with practices of USCIS regarding data and document management that is spread across Service Centers, Field Offices and a salt mine in Missouri are well known. The Visa Gate which affected half a million immigrants a decade ago was caused by the problems with USCIS data. As DOS has repeatedly (and rightly) complained, USCIS limits DOS’s ability to be reasonable with the Visa Bulletin.

(3) Modeling of death, denials, divorce and drop-outs. The visa backlog is a dynamic quantity, not a static one. In particular, deaths, denials, divorces and drop-outs (withdrawals) reduce the numbers. To the best of our knowledge DOS does not use estimates for these factors to arrive at projections about the future.

To forecast future visa bulletins, mathematical models for the above three dynamic quantities would have to be constructed, tested, and fine-tuned, just to arrive at a first approximation. At that point, further tools from higher mathematics would have to be brought to bear. Human intuition operates somewhat like the Pareto Principle (aka the 80-20 rule) and is not an adequate tool to handle the complexity of this problem. Arithmetic and algebra even when coupled with fancy graphics in spreadsheets that appear to be authoritative for calculating projections for waiting times, are woefully inadequate tools to deal with the complexity of these projections. One needs to use advanced mathematical tools such as Game Theory and Monte Carlo simulations at a minimum to adequately deal with the complexity inherent in visa numbers projections. Discussions on the web on visa bulletins for every FB/EB category typically involve straight line projections, with the occasional foray into exponentials. However, when dealing with dynamic quantities instead of static ones, tools such as arithmetic and algebra are not enough. Game Theory and Monte Carlo simulations are two of many tools available from mathematics for calculations involving dynamic quantities. There are still further higher mathematical tools such as linear algebra or fractal mathematics that could be useful here, but we hope that the above two suffice to exemplify the complexity that would be needed to make reasonable forecasts about future visa usage. To the best of our knowledge, no one at DOS has suggested that they employ mathematical tools adequate to do the heavy lifting of figuring out the result of the many interacting dynamic quantities instead of static ones. We could offer more objections to haphazard forecasts about future availability of visas (by DOS and others), however, we trust that the above suffices to point out their inadequacy as a reliable and reasonable tool of measurement.

A court challenge to the practice of visa projections (since these affect markets, and affect particular EB5 raises, harming some while helping others) will compel testimony by DOS officials in court. That testimony will not meet the Daubert standard, and will likely be thrown out of court--and the challenge likely sustained. Fixing this problem, would require DOS to hire people competent in mathematics, and we encourage DOS to do so. Without the use of advanced mathematical tools, Immigration Daily suggests that prognostications by DOS about future visa bulletins are more hot air than reliable information. While the law compels everyone to abide by the current visa bulletin, this is not remotely true for fancy words about future visa bulletins. Immigration Daily asserts that forecasts about future visa bulletins by DOS and others who do not have the requisite mathematical competence are inadequate in methodology and doubtful in results.

Please let us know your thoughts by writing to editor@ilw.com

Erratum: The following article originally ran on April 29, 2019 with several formatting issues but it has been corrected and can be viewed here: Article: Positive Changes to 90-Day Misrepresentation Guidance in the Foreign Affairs Manual – Especially for Foreign Students By Cyrus Mehta

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