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people who had appeals pending and weren't eligible to file adjustments before and people whose I-140s may have been revoked and who have had to refile again.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 doesnt 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
The State Department released the November 2015 Visa Bulletin today and the news is good for EB-5 applicants. The China born waiting line has been shortened from 24 months to just over 23 months. While this may not be a lot, the fears of retrogression (where the waiting line gets longer) have not emerged, yet.
For other than China born, there is no visa quota waiting line besides current government processing times.
The Date for Filing (DFF) adjustment of status in the U.S., or for issuance of DS 260/Fee Bills is still May 1, 2015. Therefore, anyone with an approved I-526 received before May 1, 2015 can submit Form DS 260 and pay the Fee Bill, or if in the U.S. legally, could be eligible to file an I-485 adjustment of status
Federal Register, Volume 80 Issue 197 (Tuesday, October 13, 2015)
[Federal Register Volume 80, Number 197 (Tuesday, October 13, 2015)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25964]
DEPARTMENT OF STATE
[Public Notice: 9314]
Bureau of Consular Affairs; Registration for the Diversity
Immigrant (DV-2017) Visa Program
AGENCY: Department of State.
SUMMARY: This public notice provides information on how to apply for
the DV-2017 Program and is issued pursuant to 22 CFR 42.33(b)(3),
implementing sections 201(a)(3), 201(e), 203(c), and 204(a)(1)(I) of
the Immigration and Nationality Act, as amended, (8 U.S.C. 1151, 1153,
The Congressionally-mandated Diversity Immigrant Visa Program is
administered annually by the Department of State. Section 203(c) of the
Immigration and Nationality Act (INA) provides for a class of
immigrants known as ``diversity immigrants'' from countries with
historically low rates of immigration to the United States. For Fiscal
Year 2017, 50,000 Diversity Visas (DVs) will be available. There is no
cost to register for the DV program.
Applicants who are