Comment: November Visa Bulletin


The ostensible reason for the delay in issuing the November visa bulletin is that Hong Kong numbers are being accounted for as part of the China quota which is a tricky issue to justify based on how best to read the law as it stands (it also supposedly makes recalculation difficult). Furthermore, consulates throughout the world are partially closed due to covid which has led to fragmentary data, making predictions difficult.
The above may not necessarily be the whole story for two reasons: (a) we have confidence in DOS's ability to keep track of its data; (b) the legal mavens at DHS and State are masters of jugglery, and will likely succeed in shoehorning (at least temporarily) the administration's preferred policy views into acceptable legal interpretation.
What then are the real reasons for the unusual delay in issuing the November visa bulletin? There are two.
Firstly:
USCIS wants to see how much money they can take in from premium processing fees from their maneuver of providing EADs and APs to as many as 500,000 Indian immigrants on H1B. USCIS has found a brilliant way of getting around the lack of appropriations provided by Congress to create a massive cash cow of hundreds of thousands of Indian immigrants that can be milked every year predictably as they apply for renewal. Not only does it give USCIS a massive cash infusion now to avoid any furloughs, but a large steady income for many many years to come as immigrants continue to wait in long Green Card lines paying for it year by year. The October visa bulletin ensures that USCIS gets the first cut from immigrants before banks or employers or attorneys or any other US institution/group. The delay in the November visa bulletin is to estimate the one time and ongoing dollar amount already committed by Indian H1Bs and to calculate whether it is sufficient for USCIS's immediate and ongoing budgetary needs or whether they need to keep the door open another month to sign up more Indian immigrants.
This shows how accomplished DHS budgeting experts are. This level of strategic thinking, sophisticated mathematical modeling and red-teaming is unmatched by any of the players in the immigration space--including law firms, large tech companies and industry associations such as AILA and IIUSA. The October visa bulletin is also a politically astute solution for an executive agency to solve its budgetary problems without the help of Congress.
The October visa bulletin is not illegal, nor is it improper. USCIS is actually trying to help Indian immigrants and is actually delivering a benefit to immigrants.
Secondly:
DOS is playing with fire by reallocating visas in a manner different than mandated by Congress. As cases processed in consulates fall due to covid, the simplest way to address the drop would be to move that quota to adjustment of status cases, even if it means making all categories current for both family and employment.
Not doing so effectively transferred visas from the family category to the employment category to the tune of 250,000 visas from family immigration to employment immigration at the end of fiscal 2020. While covid was a valid excuse for that in 2020, it will not be a valid excuse if the same were to happen for fiscal 2021. Doing so would be tantamount to an executive agency trying to rewrite a Congressional statute circumventing Congress.
With all this maneuvering DHS folks have shown themselves to be strategists par excellence armed with sophisticated mathematical modelling which has left everyone in the immigration space way behind and completely in the dark. We look forward to the November visa bulletin.


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