Written by Melissa Chavin
Visa Bulletin Chaos
Issuance of immigrant visas based on employment based petitions and approval of adjustment of status to green card holder based on approved EB-1, EB-2 and EB-3 petitions are chaotic this July.
Most clients of Chavin Immigration Law Office are applying for non-immigrant visas or immediate relative immigrant visas, like marriage-based green cards, so this discussion is not relevant to them.
While the family based, "preference" petitions filed on Form I-130 have been sluggishly moving on the monthly visa bulletins, the employment-based petitions had visa issuance “numbers” available to them for the most part. Petitioners and beneficiaries were able to file for adjustment of status in the United States on Form I-485, or to have visas issued, after interviews at US embassies and consulates abroad. This month, however, interviews for adjustment of status are being held, but some applications are suspended, since visa “numbers” are not available, per the August visa bulletin issued by the US Department of State. In some cases, adjustment of status interviews for the rest of the immigration fiscal year, until 1 October 2019, are being cancelled and rescheduled.
The issue is that the US Department of State, that runs the immigrant visa issuances outside the US, and the USCIS, the immigrant status adjudicator in the US, have both reported enough documentarily qualified applicants in the employment based visa categories (EB-1, EB-2 and EB-3) for visas or adjustment of status for this fiscal year. The immigration agencies' fiscal year ends in September. EB-1, EB-2 and EB-3 categories are now oversubscribed until October 1, 2019. No more immigrant visas will be issued for those employment-based categories, unless an applicant’s petition filing date (“priority date”) is earlier than the one set forth on the August visa bulletin. The date listed there indicates the priority date for the last applicant that could be granted a visa based on the estimates used to create the bulletin.
How the Visa Bulletin Is Created
To determine whether the supply of visas that can be issued in a given fiscal year is greater than the demand, the number of visas available for the remainder of the fiscal year are compared with:
• Documentarily qualified visa applications reported by the Department of State, plus
• Pending adjustment of status applications reported by USCIS; and
• The historical rate of applicants for adjustment of status or visas abroad not being approved due to denial, withdrawal or abandonment of application.
Visa "numbers" are requested by US embassies and consulates around the world to support their visa demand estimates. If the numbers are unused, they are returned to those that keep track of them and draft up the monthly Visa Bulletin. Embassies and consulates have had dramatic leadership and personnel turnover with the new President, and may not be estimating visa demand as effectively as in the past, or returning numbers due to lack of experience and training.
The Visa Bulletin creators keep a pending demand file, which contains approvable cases. Having cases in this file provides the Visa Bulletin authors visibility into the demand for visa numbers, and allows them to set forth more accurately the Final Action Dates.
The Visa Bulletin creators' job is to make sure the correct number of visas are issued in the various categories in a given year. They take corrective action toward the end of the fiscal year by stopping visa issuances historically in September, with that month's Visa Bulletin. This fiscal year, it is happening as early as mid-July, with the publication of the August Visa Bulletin.
How the Visa Bulletin Is Used with Form I-485 Filings
The Visa Bulletin is published by the Department of State monthly, and it can be used to determine whether an adjustment of status filing can be accepted by the USCIS in the United States. The USCIS lets people know monthly whether the “Final Action Dates” chart or the “Dates for Filing of Employment Based Visa Applications” chart can be used for someone who wants an adjustment of status application accepted. An adjustment of status application is a Form I-485 based on an approved I-140 or concurrently filed I-140. The USCIS let people know that the June, July, and August Bulletin “Final Action Dates” should be used in those months, not the earlier dates set forth in the “Dates for Filing of EB Visa Applications Table.” In June, the categories EB-2 and EB-3 were still current, so adjustment of status applications could still be receipted/ accepted for filing.
The retrogression effects most dramatically those who need to file an adjustment of status application to help them stay in a legal status in the US. If their filing is rejected, they will need to leave the US, sometimes with dramatic consequences. They could also fall out of legal status, or be left without a legal status in the US.
In October, Will Visas Be Issued?
The oversubscription for fiscal year 2019, that is causing the employment-based immigrant visas not to be issued at the US Embassies and Consulates abroad, and the applications in the United States to be held in abeyance, is predicted to be relieved in October 2019. On October 1, 2019, the 2020 fiscal year's "numbers" will be released. The August Visa Bulletin authors state that "every effort will be made to return ... final action dates to those which applied for July." Historically, final action dates and dates for filing improve for many categories at the start of the immigration fiscal year.