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  • Article: How Does Uncle Sam Waste Immigrant Visas? By Brent Renison

    How Does Uncle Sam Waste Immigrant Visas?

    by


    I'm going to explain exactly how the government wastes on average tens of thousands of immigrant visas every year, contrary to Congressional intent, systematically compromising the workforce and keeping families apart. Every number in this report represents a green card which could have been issued to a waiting immigrant, but was not handed out due to government mismanagement and ineptitude. This loss of numbers impacts the very lives of legal immigrants in significant and permanent ways. To understand how this happens, we have to look at numbers. Because the formulas and calculations get a little complicated, and because the system of numerical limits set up by Congress in 1990 doesn't make a lot of sense, I'm going to use an analogy. We'll talk about how the system is like a theater that distributes tickets. The show is the American Dream, and not everyone gets seated. In fact, in this theater, not every seat gets filled even though there are plenty of people wanting to see the show.

    The theater analogy is based on real immigrant categories and numbers. First, the immediate relatives of U.S. citizens are spouses, parents and minor children of U.S. citizens. Immediate relatives can immigrate in an unlimited number, so we will call them the VIPs. Second, are the family immigrants, such as the spouses of permanent residents, adult children of citizens, and brothers and sisters of citizens. We'll just call them family immigrants. Third, are the employment immigrants, such as advance degree holders, individuals of extraordinary ability, outstanding researchers and professors, and other professionals. So the three categories are VIP, family and employment.

    In 1990, Congress established a limit of 140,000 employment immigrants, and a limit of 480,000 family immigrants, except that the numbers of VIP immigrants who were given green cards from the previous year would subtract from the family limit. For example, in 1989, when Congress would have been considering what rules to enact, there were 217,000 VIPs. So the number of family immigrants would have been 480,000 minus 217,000, which is 263,000. As a protection against a situation where there were more VIPs in future years, Congress established a minimum of 226,000 immigrants for the family category. So even if the number of VIPs in the prior year was more than the 480,000, there would still be 226,000 family immigrants allowed for the year. Also, to protect against numbers going unused, Congress allowed unused family numbers to be used in the employment line the next year, and unused employment numbers to be used in the family line the following year. You can see Congress wanted all the numbers utilized.

    Let's get to the theater. There is one particular theater employee who holds all the tickets to the show. Let's call him Uncle Sam, since he represents the government. Each night at the theater represents a year of immigration. For simplicity, let's not use thousands of tickets, but just hundreds. So Sam is holding 140 instead of 140,000 tickets for employment folks. He has 480 family tickets, but the theater boss - that's Congress, let's call her Big Boss - said he has to subtract the number of VIPs who came in the night before. Let's use the example of 1989 numbers, and say 217 VIPs came through the door last night. So, 480 minus 217 equals 263, which is the number of tickets that can be used for the family line. That night, Sam is so slow he only manages to distribute 130 tickets to the employment line before the show is over, leaving 10 seats unfilled. He also gives out only 210 of the 263 tickets for family, leaving 53 seats unfilled. That night 300 VIPs come to watch the show. Big Boss tells Sam to take the 10 employment tickets he failed to hand out in time and put them in the family pile for the next night, and the 53 undistributed family tickets into the employment pile. He does, and the next day he takes 140 new employment tickets and adds them to the 53 family tickets so he has 193 tickets. He takes 480 new family tickets, plus the 10 employment tickets, which is 490, but then Big Boss tells him to subtract last night's VIP numbers from the pile, leaving him with only 190. But since the family line always has a minimum of 226 tickets, he increases the tickets to that number.

    Every night thereafter, Sam slowly hands out the tickets, failing to give them all out, and almost always leaving people waiting outside while empty seats remain inside for the American Dream show. He moves the undistributed employment tickets to the family pile for the next night, but because each night the VIPs are in the 400 to 500 range now, he always just has 226 family tickets the next night. The unused employment tickets essentially vanish. That is what is happening with our immigration system, and has been happening from 1990 until the present time.

    The CIS Ombudsman's office, which is an independent office within the Department of Homeland Security which provides some independent oversight of the country's immigration agency the USCIS, issued a report in 2010 which showed that over the years, over half a million employment based green cards were wasted, and nearly a quarter million family green cards lost as well. In 2000, the AC21 law provided for recapture of 130,000 of the lost employment numbers, and in 2005 the REAL ID Act recaptured another 50,000 employment numbers, still leaving about 326,000 employment based green cards wasted, unused, and lost due to government mismanagement of the system.

    You know, I gotta say, if Sam was my employee I would have put him on a performance improvement plan long ago, but Big Boss (i.e. Congress) has simply given him extra tickets to use, and in turn, waste and lose again. In fact, after the bail out of Sam's losses, he has continued to lose them. Even after the 2010 Ombudsman's report, the losses have continued. It is hard to tell, because in 2008, after the REAL ID Act bailout, Sam stopped providing the detailed calculations used to show the unused numbers. That's right, the reports abruptly stopped, leaving only the raw data. Well, I wanted to know just how many green cards were lost to Sam's slow moving hand in the five fiscal years from 2010 to 2014, so I got out my calculator, and started adding and subtracting. It was like helping my middle schooler all over again with math problems. But now, for the first time, everyone can see the waste that has occurred since the Ombudsman's 2010 report to Big Boss. More than 38,000 family numbers were lost, and over 8,500 employment green cards were wasted, just in the past 5 years alone. Those are more than just numbers. Those are lives hanging in the balance. Those numbers represent separated family members, dreams on hold, and children who age out and lose eligibility.

    To be fair, Sam has a difficult job. Big Boss stuck him with a formula that was bound to fail from the get-go. While Congress may have intended all the unused visas to roll over from one category to the other and vice-versa, they failed to anticipate that the number of VIPs, the immediate relatives, would dwarf the 480,000 limit, leaving only the 226,000 minimum. If they had realized that back in 1989 or 90, perhaps they would have added the unused numbers in the employment column to the 226,000 minimum instead of the 480,000, and the numbers wouldn't be lost. But the VIP numbers have been over 400,000 for decades, and now every single unused visa in the employment category goes to waste.

    The dual date Visa Bulletin, announced in September 2015 for October 2015, was an attempt to allow individuals to file earlier, and thus give the agency more time to process applications to final decision before the theater closed for the night. By providing two lists, one for those who could file, and one for those whose cases could finally be approved, the agency would have a better chance at finishing the work in time. The dual date Visa Bulletin was an attempt to work within the existing flawed system to simply give Sam more time to hand out tickets so they're fully distributed, and so the American Dream show would have all seats filled. But in its execution, the October 2015 Visa Bulletin failed because the two agencies which give out green cards, the Department of State and the USCIS, can't seem to communicate.

    Because of this time proven reality, the system simply needs changing. It is unrealistic to fire Sam, since he's the only one who Big Boss can hire to do the job. The green card numbers need to be allowed to truly roll over, without being lost to the black hole.

    The numbers lost, just in the past 5 years since the Ombudsman's report (see figure below), should be reason enough to upgrade the system. Remember the operating system in 1990? It was Windows 3.0.

    Joseph P. WhalenWasted Visas FY2010 - FY2014 - Calculations by Brent Renison, Esq. - cOPYRIGHT 2015 pARRILLI rENISON llc ALL RIGHTS RESERVED.

    2010 CIS Ombudsman's Report on Unused Family and Employment Preference numbers from fiscal years 1992 until 2009:

    Joseph P. Whalen

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


    About The Author

    Joseph P. Whalen

    Brent Renison is an immigration attorney in Portland, Oregon who has been representing employers and key employees with business-based immigration since 1997, as well as families with petitions and green card applications. He is well known for litigation of family and business immigration matters.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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