In a recent unpublished decision, the BIA tackled an important question about calculating priority dates for immigrant visas.

The immigrant in removal proceedings had sought to have his court delayed because he had a visa approved but was waiting for the “priority date” to become current.  Due to the per-country limits and the total annual limits on visa petitions, some people wait years or even decades for their visa to be available, even after it is approved.

In this case the Immigration Judge said the “priority date” was “too remote” because nobody could guess how long it would take to become current.  This is, in part, because the monthly visa bulletin is not designed to predict which visas numbers will be available in the future but, rather, what visa numbers are available now.  When demand goes up, the numbers in the visa bulletin can even go backward, making it impossible to rely on the visa bulletin to decide when visas will be available.

The immigrant in this case asked the BIA to decide when a priority date was “too remote” to justify granting a continuance in the hopes that the priority date will eventually become current and the respondent could adjust their status.

If an immigrant in removal proceedings has an approved visa petition but not a current visa number, the courts have at times continued proceedings to allow for a visa number to become available.  But in Matter of Rajah, 25 I&N Dec. 127 (BIA 2009), the Board held that even if a person has an approved visa, a continuance might not be warranted if “visa availability is too remote.”

The Board’s new unpublished decision, Matter of Jesus Penaranda, A074 916 051 (BIA, Hartford, CT, March 29, 2011), raises the question unanswered in Matter of Rajah: when is a visa number “too remote”? The Board said it wasn’t willing to answer that question in this case, but it went on to offer a half-hearted standard, stating an IJ ought to at least “view current visa availability particularly in the context of recent movement in that particular visa category.”

Unfortunately, this doesn’t give much more clarity than we had before.  The visa bulletin doesn’t give any projection about future visa availability, and recent movement doesn’t predict future movement.  Determining when a priority date might be “too remote” is impossible unless the Board provides more guidance, because reasonable minds can differ about how remote a date needs to be to be “too remote.” However, if an immigrant seeking a continuance on the basis of his approved visa can prove that there has been recent movement in his category, the unpublished decision in Matter of Jesis Penaranda is helpful in trying to get a continuance.