One more action proposed by the President in November, 2014 looks like it is about to happen, almost a year later. Recent reports from several sources confirm that the State Department is preparing to reform the way it tracks visa availability to permit individuals with long-pending visa petitions to file applications for adjustment of status earlier, relieving some of the negative effects of the long-term visa backlogs for employment-based immigrants.

Understanding the Current Visa Bulletin 

To understand why this change is significant,you have to understand the problem. Currently, the immigration statute only allows a certain number of visas for each class of visa (with per-country limits as well). When a visa is available depends on two metrics: (1) when the visa petition was filed (which is called the “priority date”); and (2) the visa bulletin’s current processing date.

The monthly visa bulletin has a chart that show the cut-off dates (which change from month to month), based on the country of chargeability and the preference category. It looks like this:

VIsa Bulletin Chart

Before the last step can be taken (filing an I-485 application for adjustment of status) a visa number has to be available. This chart tells us what dates are currently being processed – numbers are available only for applicants whose priority date is earlier than the cut-off date listed in their category.

Why is This a Problem?

One of the largest problems with the visa bulletin is that for some categories (and some countries), the visas are “oversubscribed,” meaning they’ve received more visa petitions than the statute allows them to grant. When a category is “oversubscribed,” a backlog is created.  This is bad for a number of reasons.

(1) The Visa Backlogs Are Out of Control

This system has created the largest visa backlog in U.S. history. Those highlighted sections in the image above are the primary problem with the current visa bulletin.

For a 2nd preference visa from China, there is now a 10-year wait from the date the visa petition was filed (meaning all the work and testing of the market had been completed) until the employee can actually apply for adjustment of status, the last step in getting their green card.

This is especially ridiculous, because it gets worse as the U.S. economy improves. When labor demand is high, more employers file these visa petitions because they need these workers. And yet, the more visa petitions they receive, the longer the backlogs grow, and the harder it is to get a visa in these categories. It’s the exact opposite of how this process should work.

(2) Visa Retrogression Makes Things Worse

Note that this chart does not, and cannot, predict when the visa numbers will become available in the future.  Sometimes these numbers go backwards, not forwards, depending on how many applications are received, so if you’re waiting for your visa in one of these categories, this can be an excruciating wait (especially toward the end of the fiscal year).

The clinical word USCIS uses for this is “visa retrogression,” which really just means “we thought we would have more visa numbers by now, but we were wrong.” This can create the absurd result of a priority date meeting the cut-off date one month but not the next month.

Remember my example above of the 2nd preference visa from China which now has a 10-year wait?  Just last month that category had a cut-off date of December 15, 2013. This means that in a single month this year, a person with a visa petition in this category who thought she was about a year and a half away from filing her green card application now has to wait 10 years. In one month, this category retrogressed by over seven years for China and almost three years for India (from October 1, 2008).

(3) The Government’s Tracking Methods Have Changed Over Time

To add to this confusion, the government’s tracking of visa numbers has not always been consistent. The Immigration Act of 1990, increasing the total visa number from 500,000, where it had been since 1965, to 700,000. Once the statute was implemented, the slate was wiped clean, starting in fiscal year 1992.

There was no backlog of immigrants waiting for green cards to become available. But because of the new visa caps, the Department of State implemented an incredibly complex new formula. Still, in some of these early years, many of the visa numbers weren’t used (roughly 220,000 visa numbers were unused from 1992 to 1997). The dot com boom changed that, and suddenly the demand for high-skilled workers increased. The backlogs have grown since then.

(4) The Employee’s Family Members Suffer and Sometimes “Age Out”

Another problem with this system is that these workers usually have families. Imagine entering the U.S. with your 10-year-old job to take a high-tech job. Waiting 14 years for the visa number to become available (and thus 14 years before you can file an adjustment of status application) means your child is 24 when the visa is finally read. The problem is that after the age of 21, the immigration law doesn’t treat them as your “child” anymore (with some exceptions), and in some cases the children eventually have to leave, after having grown up and gotten their education in the U.S.

People in these categories also have a very hard time knowing if they can “settle down.” Local economies benefit from their residents buying houses and longterm goods, but immigrants in these categories never really know if they’re going to be allowed to stay (or when). So even if they’ve worked in a well-paying, high-tech job for 10 years, it is hard to know if they should buy a house, buy a car, etc.

(5) The Vetting Done By the DOL Makes No Sense if It’s Done 14 Years Before the Job Starts

The cherry on top of this ridiculous sundae is that the people in these categories are typically already here, working those jobs, in a perpetual cycle of temporary visa extensions until their priority date becomes current.  But they’re often locked in to work for that same employer, or in that same position.  This is because at the beginning of the process, the DHS and the DOL had to vet the employer, the wage, and the position (and assess the labor market to make sure there wasn’t a US worker who could fill the position).

Doing this test at the beginning, only to have the person wait 14 years to actually take the job permanently, is the height of bureaucracy.  By the time the visa number is current, hundreds of factors will likely have changed and the vetting that was done at the beginning is obviously no longer an accurate reflection of the labor market.

What Has Been Proposed? 

The government hasn’t yet confirmed if the reports about the coming changes are true.  But if they are, this is what we understand the changes to look like:

Instead of basing the date you can file your I-485 application for adjustment of status on when a visa number will be available, the government is considering letting people in these backlogged categories file early.

To do this, the State Department will split the current “cut-off date” in two.  There will now be a date in each visa category when an I-485 can be “filed,” and there will be a date in each category when it can be “approved.” This is because the president doesn’t have the power to make the approvals go any faster given the statute’s limit on visa numbers per-country and per-category.

Why is this such a huge change? For one, just letting people who have been vetted by the DHS and the DOL file their I-485 application for adjustment of status early makes it a million times easier to wait for the final visa. Once the adjustment application is filed, the worker becomes eligible for other benefits, like

  1. obtaining a work authorization document without having to keep extending their old temporary visa;
  2. getting permission to travel outside the country and come back (called “advance parole”) in case they need to attend a funeral, etc.; and
  3. changing employers but keeping their original priority date.

It would also be possible once people have filed their I-485s to stop the perpetual cycle of extending their underlying temporary visas. However, even after the change to the visa bulletin this won’t always be a good idea. According to Tony Weigel, a Kansas City employment-based immigration attorney who regularly counsels employers and employees on coping with the visa backlog, continuing to extend the underlying H-1B visa still might be necessary “in the event something happens to the pending permanent resident case.” For example, if the USCIS revokes the permanent visa petition approval (which it is allowed to do), the person will still be in quite a pickle if her underlying H-1B has been allowed to lapse. And since one never knows what the future holds, it still might be important to keep extending the underlying visa.

Will this work?

That’s not entirely clear and it’s hard to understand what it will look like.  The current visa bulletin doesn’t predict when a visa will be available. In fact, looking at how the numbers retrogress from month to month, assuming when a visa might be available based on the projections in the visa bulletin is about as good as looking for that information in the Farmer’s Almanac.

The proposed solution seems to allow people to file their I-485 applications a certain number of years before their “approval cutoff date.” But since we can never really know when a visa number will be available in the future, how will the Department of State come up with that number?

This will also make the visa bulletin quite a lot harder to understand and explain.  It’s already incredibly difficult to explain to people how  the visa bulletin works and what it means when just the visa availability “cutoff date” is shown. And recent FOIA litigation shows the government isn’t always happy to let the public in on how they calculate visa number usage.

Hopefully this will be implemented in a way that people can understand and that will make the process easier for those who have already been vetted by DHS and DOL and are suffering in the current backlogs.  We’ll see.

What Else Can the President Do? 

We hope this isn’t the only change coming, because there is much more the President can do to help with the backlogs.  One thing he can do is to use those 220,000 visas that went unused between 1992 and 1997. There is nothing in the current law to prevent the agency from allocating those visa numbers now, so it wouldn’t even take an Executive Order or new regulations.

Using those 220,000 unused visa numbers would immediately reduce the visa backlog and help reduce the delay for those who have been patiently waiting in these categories for so long.

[image via GraphicStock]