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  • Article: Understanding the Visa Bulletin Fakeout. By Brent Renison

    Understanding the Visa Bulletin Fakeout

    by


    Weíre going to take a look at the visa bulletin fakeout, or fiasco, or visagate 2015 as its been called. Youíve heard about it because you were either hoping to file a green card application tomorrow, October first, or your employees have let you know they will suddenly not be able to proceed with an application now. So what happened? In this blog post weíll take a look at what is going on, who is affected, why it happened, when it might be resolved, and how to deal with the aftermath. If you want to listen during your commute, download our podcast on iTunes.

    In a nutshell, the government announced on September 9, 2015 that people who had been waiting in line for years to apply for their green cards could file applications on October 1, 2015. Thousands of people began preparing their applications by hiring attorneys, attending medical exams, obtaining documentation, and raising their hopes. Then, 16 days later on September 25, 2015, just days before October 1, the government published a revised bulletin telling those thousands of people they could not apply for green cards in October after all. Those people were all born in just four countries, China, India, Mexico and the Philippines.

    To understand why this happened, a bit of a primer on the immigration system is in order. Its important to know that a green card is not U.S. citizenship. A green card allows a person the right to live and work here permanently, and to apply for U.S. citizenship after holding a green card for three or five years. People seeking a green card are considered immigrants. To get a green card in most cases, a petition must be filed by a close relative who is a U.S. citizen or permanent resident, or by a U.S. employer. When a petition is filed, the immigrant who is the beneficiary of that petition is given a date. The date identifies the immigrantís place in the queue, along with all the other immigrants who are filing petitions. This date is called the priority date. The immigrant is also assigned a category, depending on their particular family relationship or specific job offer and skills.

    So, what about the country of birth thing? Well, Congress has passed laws limiting the overall number of immigrants, but also the number coming from each country. In 1965, Congress abolished a discriminatory system which was created in the 1920ís which had limited immigration from each country to the percentage in existence in 1890. The 1920ís law was clearly meant to exclude certain nationalities. The 1965 law, enacted as part of the civil rights movement, sought to establish a level playing field, with a 20,000 limit from any one country. In 1976 a revision to the law made it necessary to have a visa number available at the time of filing, not just at the time of approval. In 1990, Congress increased employment based immigration from 54,000 to 140,000, and changed the per country limit to 7% of the numbers. Thatís still the law today.

    Once a month, the State Department publishes a visa bulletin advertising what priority dates in each category will be permitted to apply for a green card the next month. Essentially, if an immigrantís priority date is earlier than the published date, they can apply. For example, if a personís priority date is July 1, 2010, and the visa bulletin shows a date of June 30, 2010, they canít yet apply, but if that date were July 1, 2010 or after, they could apply. The system is designed to let people with an earlier date in the queue apply first.

    One strange thing about the visa bulletin is that each version supercedes and overrides the previous bulletin. For example, using the July 1, 2010 priority date from before, if the immigrant applied for a green card during a month when the visa bulletin showed a July 1, 2010 date, but then the next month the bulletin published a June 1, 2010 date, the case could not be approved in that month, but would remain pending, like on a shelf somewhere, until the published date was once again later than the personís priority date. Because the usual bureaucratic process of approving a case usually takes at least six months and often more, the visa bulletin date can in fact retrogress instead of progress, causing the person to be stuck with a pending case and a visa bulletin with dates earlier than the personís priority date. The immigrant must then wait until the visa bulletin publishes a date later than the personís priority date to receive final approval on the green card. Itís a totally crazy system.

    To address this anomaly, President Obama announced in November 2014 that a visa modernization process would be implemented. When the visa bulletin was published on September 9, 2015, it had for the first time two dates for each category of immigrant, one to reference for filing applications, and another to consult for approval of the green card. This dual date system was intended to allow immigrants to file sooner for their green cards so that by the time the bureaucratic process was completed, the final approval would issue without delay. In other words, since the 1976 law states an immigrant must have a visa number available at the time of filing, but bureaucratic delays make it simply impossible for a green card to be approved in the same month the application is filed, they have devised two dates to accommodate filing ahead of time so the final approval can come more quickly. This was seen as a positive improvement to the system.

    Then came the fakeout. Another October visa bulletin was issued on September 25, 2015 which stated, ďThis bulletin supercedes the bulletin for October 2015 that was originally published on September 9, 2015, and contained Dates for Filing Applications long used by the Department of State for internal processing purposes.Ē It isnít hard to draw the conclusion from this statement that a monumental error must have been made in issuing the September 9, 2015 visa bulletin. Some kind of internal government miscommunication. The people affected by the mistake were all from China, India, Mexico and the Philippines because those countries have different dates for each particular category due to the imposition of the 7 percent per country limits set in 1990. In the case of China and India, the impacted category was advance degree professionals. The date for China was changed from May 1, 2014 back to January 1, 2013, a difference of one year and five months. The date for India went from July 1, 2011 to July 1, 2009, a two year jump backward. For the Philippines, the professional and skilled worker category went from January 1, 2015 to January 1, 2010, a five year retrogression. And married Mexican immigrants with U.S. citizen parents moved a year and five months from October 1, 1996 to May 1, 1995. The difference, of course, between this retrogression and other times the visa bulletin dates are changed for the worse is that no one has had a chance to utilize the October visa bulletin since it was not set to go into effect until tomorrow, October 1, 2015. For example, an advance degree professional from India with a priority date of July 1, 2010 was eligible to file for a green card based on the September 9 visa bulletin for October 2015, because the date for filing was set at July 1, 2011, but was not eligible under the September 25 revised visa bulletin for October because the date was changed to July 1, 2009.

    The visa bulletin fakeout happened on a Friday afternoon, and by this past Monday September 28, 2015, a class action lawsuit was filed, a White House petition initiated, and a grass roots campaign organized to send flowers to the agency heads in Washington D.C. pleading for mercy! So, with all this outrage, the lawsuit, the grassroots organization, what is likely to happen? One need only look at history to have a clue. As unbelievable as it may seem, this fakeout happened back in 2007.

    The same public outcry occurred in 2007, and within just a few weeks the State Department and the Immigration Service agreed to let the impacted immigrants, who by all accounts were more numerous than the group impacted now, to file green card applications in a 30 day window. In 2007 there was a threatened class action lawsuit, a flowers campaign, and members of Congress breathing down the neck of the agency. Reason prevailed and the agency did what was honorable, to recognize the hardship of those who acted in reliance on the earlier bulletin. By allowing a narrow window of time within which to file, the agency would not be allowing more immigrants to get green cards than is allowed by Congress. The final approval dates still supercede the filing dates which are published, and so those who file in such a window may see their cases take a little longer to be approved. But there is a distinct advantage to having a green card application filed and in process, including the ability to obtain special work and travel permission, the freedom in some cases to get a promotion or move to a better job, and the ability to have children who might otherwise become too old be included in the application There is a lot at stake this year, and everyone is hoping the agency will do the right thing.

    Nothing is going to happen, however, without the active involvement of concerned people. In the immediate short term, people should sign the White House petition, which has over 9,000 signatures but needs another 91,000, and contact their elected representatives. If you want to share your case details with the lawyers handling the class action, visit Greg Siskindís website at visalaw.com. Long term, the per country limits should either be removed or increased. The iSquared Act would increase the per country limit to fifteen percent, and is a step in the right direction.

    Brent Renison

    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.
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