One Theory Explaining Visagate

Posted on: October 9th, 2015
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Since the beginning of the Visagate controversy, something has bothered me about the explanation USCIS has been offering. Our own number crunching Visa Bulletin wonk has come up with a number just over 29,000 as the number of EB-2 India and EB-2 China numbers that will be available in Fiscal Year 2016 and likely demand just over 30,000 if a July 1, 2011 acceptance date is used. So Charlie Oppenheim’s original Visa Bulletin would have been right on target.

USCIS forced a revision that retrogresses that date to July 2009. That’s a date that has been hit three times in the past so the number of people who would file now is going to be fairly small. Most people wouldn’t have missed the train three times. But there are likely some EB-3 to EB-2 upgrades, people who had appeals pending and weren’t eligible to file adjustments before and people whose I-140s may have been revoked and who have had to refile again. Basically, a small group of applicants. Our number cruncher is predicting about 5,000 applicants under the new acceptance dates.  If there was a stash of pending adjustment applications pending that Charlie Oppenheim failed to consider (USCIS made this claim last week in its reply brief to our filed lawsuit), why pick a number so ridiculously skimpy? Why not just pick a date that’s more modest, but later than the virtually useless dates they settled for the September 25th version of the Visa Bulletin?

And then it occurred to me that USCIS might have found a theory that would allow them to take virtually no early applications and still claim they are on board with Visa Bulletin modernization. Visa Bulletin modernization is about allowing people who the Department of State and USCIS believe will have an immigrant visa available within the fiscal year to file adjustment applications. That is designed to maximize the number of green cards that are issued in a year. And it is also a way to give relief to people waiting years for their green cards to get the benefits of an adjustment application earlier.

What is that theory? Under the Immigration and Nationality Act, 28.8% of the 140,000 employment-based green cards are available in the EB-2 category. That’s 40,320. Per country limits of no more than 7% going to a country mean that the maximum Indians and Chinese are guaranteed is 2,820 each. We know a lot more than 2,820 Indians and Chinese are going to get green cards in FY 2016. That’s because numbers flow to EB-2 Indians and Chinese from many places – from the lightly used EB-1 category, from unused EB-2 numbers from other countries, from leftover family numbers, etc. Charlie Oppenheim at DOS doesn’t know precisely what those numbers are going to be (neither did our number cruncher), but he can take some pretty educated guesses.

I suspect that USCIS (and possibly DOS lawyers) are taking the position that they are only going to allow adjustments for numbers that are truly guaranteed. And that would be limited to the 5,640 green cards available under the per country EB-2 quotas to Chinese and Indian nationals. Which would make a July 2009 acceptance date perfectly logical. Even though any reasonable person would agree that there are going to be a lot more visas available than 5,640 (and, as we indicated, we came up with a number almost six times higher), USCIS and DOS could claim that Section 245(a) requires a visa number to be available and the only numbers we know for sure are available are those 7% numbers. Even though it is virtually 100% guaranteed a lot more numbers are going to be available, the only number anyone can say for sure is that 7% will be available to each nationality.

I came up with this idea yesterday, but wasn’t sure how to see if it was true other than getting USCIS to admit it.

And then the November Visa Bulletin was released. USCIS claimed that the EB-2 numbers moved backwards on September 25th because green card numbers retrogressed and Charlie Oppenheim failed to account for this in his October Visa Bulletin. EB-2 cutoff dates for India did retrogress between September and October from January 1, 2006 to May 1, 2005. We were suspicious of USCIS claiming this was the reason for the new dates because Charlie has retrogressed numbers several times in the past in October only to move them up again the following month.

That’s what happened today. Cut off dates in both the EB-2 Indian and EB-2 China categories advanced. EB-2 India jumped by 14 months to August 1, 2006. But acceptance dates remained unchanged. How could this be? It makes perfect sense if USCIS is taking the position that they only can use a maximum of 2,820 numbers for India and another 2,820 for China versus the 29,000+ available under the more sensible reading Charlie Oppenheim was using for the first Visa Bulletin.

This, of course, is a way to twist what President Obama was aiming for with his executive action. The 7% limit will have virtually no impact on ensuring all green cards are issued each year and only a very small number of people will get the advantage of filing an adjustment application early.

It would also be a big, big problem for USCIS which offered a very different explanation of its actions in its response to our request for a Temporary Restraining Order.

This new reading of Section 245(a) by USCIS is a very different view Section 245(a) than the agency has taken in the past. In the summer of 2007, USCIS managed to accept 300,000 adjustment applications even though only 140,000 green cards are available for a whole fiscal year and 75% of the fiscal year was over by that point. And just last month, USCIS announced that it had used up all green card numbers for the fiscal year, but it would still accept applications for the remainder of September (about five days). Under the agency’s interpretation of Section 245(a) it’s using to explain Visagate, neither of these things could have happened. Presumably, they were using the Cyrus Mehta Thanksgiving Turkey theorywhen it suited them.

I don’t claim that I know for a fact that this is what’s going on. But it’s the only explanation that fits our numbers and explains why we saw no movement of the acceptance dates between October and November even though the cut off dates (at least for India) jumped substantially.