USCIS Confuses Matters Even More With Latest Pronouncement on Visagate

Posted on: October 14th, 2015
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USCIS has posted a confusing document on its web site offering further instructions on its implementation of Visa Bulletin Modernization. The document basically says that USCIS may not honor the second chart of adjustment filing dates published in the new Visa Bulletin format at all unless it consents to using those dates and it won’t make a decision on this until a week has passed. Basically, they’re telling people not to trust the State Department’s determination of filing dates and people will have to wait until USCIS blesses the dates. Of course, why USCIS couldn’t confer with DOS BEFORE the Visa Bulletin is published isn’t explained even though that would be way less confusing for people.

The document states that “if USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas” it may choose to honor the Dates for Filing Applications chart. It’s curious that USCIS states that it is the agency doing the determining of visa availability. That’s the responsibility of the Department of State.

Many observers have commented that Visagate 2015 is really a turf war between the State Department and USCIS. And this document certainly lends support to this.

The document also doesn’t contradict the 7% theory I’ve suggested. That is, USCIS is only using the figure 2820 as the number of visas that may be available for either EB-2 India or EB-2 China since that’s the number guaranteed in the Immigration and Nationality Act versus the estimate of all the visas that will be available to both nationalities because of spillovers from other categories (which was the basis for the first October Visa Bulletin). The only statement regarding USCIS’ methodology is

USCIS considers several factors to determine if there is a greater supply of visas than the demand for those visas. To determine visa availability, USCIS will compare the number of visas available for the remainder of the fiscal year with:

  • Documentarily qualified visa applications reported by DOS;
  • Pending adjustment of status applications reported by USCIS; and
  • Historical drop off rate of applicants for adjustment of status (for example, denials, withdrawals and abandonments).

But they don’t say how they are determining what is the supply of visas – the 2820 that represents the 7% per country limit or a bigger potential pool as the State Department originally did on September 9th.

Some people have wondered whether this new document is a reaction to the law suit. I doubt it. But it does seem like USCIS is trying to double down on its statement in their reply brief to the law suit that the Visa Bulletin is more of an advisory document than something people should really depend on.