326 Thousand Wasted Visas

While the visa bulletin fakeout has been a major focus of everyone's attention, let's not forget that the same mismanagement resulted in the waste of hundreds of thousands of immigrant visas (green cards) that could have been used over past years.  Those visas are lost forever, and without special legislation will stay that way. The wasted immigrant visas are the reason the backlogs are so bad in the first place. Every single person impacted by the October 2015 Visa Bulletin Fakeout would have already received a green card by now if the 326,000 visas were not wasted in past years.  While desperate immigrants scramble for a few thousand visas each year, remember the wasted visas, and how the government has failed time and again to protect against it.

Listen to the podcast to learn the full details (either on the player above, or on iTunes by subscribing - see "get it on iTunes button to the left).  For listeners, here are some resources:

2011 NFAP Policy Brief: Waiting and Waiting 

"A surprising contributing factor to the employment-based green card backlog is unused visas from prior years. Between FY 1992 and FY 2006, more than 506,000 employment-based immigrant visas went unused, as illustrated in the Appendix.10 Administrative issues within the federal government, particularly prior to FY 2005, prevented the U.S. immigration system from distributing all of the employment-based green cards available under the law. The State Department reports that 180,039 of the 506,410 unused employment visas have been recaptured by special legislation.11 That leaves more than 300,000 never utilized." see page 8.

2011 Congressional Research Service Report on Per Country Limits

Extensive look into the per country limits and history

Analysis: New High Skilled Immigration Bills

"In order to reduce visa backlogs, the bill calls for the recapture of unused EB visas for fiscal years 1992 through 2013, to be used beginning in FY 2016. Going forward, it calls on the Department of Homeland Security (DHS) and Department of State to ensure that every EB visa authorized to be used within a fiscal year is issued to a qualified applicant. Any unused EB visas would roll over to the following fiscal year. According to U.S. Citizenship and Immigration Services (USCIS), over 500,000 EB visas were unused between FY 1992 and FY 2009, 180,000 of which were recaptured by previous legislation."

2010 CIS Ombusdman Annual Report

"Coordination between the agencies is improving, but remains a challenge." See Chart of Wasted Visas on Page 53 of the PDF report.

Wall Street Journal Graphic on Visa Wait Times over two decades

Waiting for a Green Card Chart

For background on the visa bulletin fakeout, see the last post and podcast.

Understanding the Visa Bulletin Fakeout

We’re going to take a look at the visa bulletin fakeout, or fiasco, or visagate 2015 as its been called.  You’ve heard about it because you were either hoping to file a green card application tomorrow, October first, or your employees have let you know they will suddenly not be able to proceed with an application now.  So what happened?  In this blog post we’ll take a look at what is going on, who is affected, why it happened, when it might be resolved, and how to deal with the aftermath. If you want to listen during your commute, download our podcast on iTunes.

In a nutshell, the government announced on September 9, 2015 that people who had been waiting in line for years to apply for their green cards could file applications on October 1, 2015.  Thousands of people began preparing their applications by hiring attorneys, attending medical exams, obtaining documentation, and raising their hopes.  Then, 16 days later on September 25, 2015, just days before October 1, the government published a revised bulletin telling those thousands of people they could not apply for green cards in October after all.  Those people were all born in just four countries, China, India, Mexico and the Philippines. 

To understand why this happened, a bit of a primer on the immigration system is in order.  Its important to know that a green card is not U.S. citizenship.  A green card allows a person the right to live and work here permanently, and to apply for U.S. citizenship after holding a green card for three or five years.  People seeking a green card are considered immigrants.  To get a green card in most cases, a petition must be filed by a close relative who is a U.S. citizen or permanent resident, or by a U.S. employer.  When a petition is filed, the immigrant who is the beneficiary of that petition is given a date.  The date identifies the immigrant’s place in the queue, along with all the other immigrants who are filing petitions.  This date is called the priority date.  The immigrant is also assigned a category, depending on their particular family relationship or specific job offer and skills. 

So, what about the country of birth thing?  Well, Congress has passed laws limiting the overall number of immigrants, but also the number coming from each country.  In 1965, Congress abolished a discriminatory system which was created in the 1920’s which had limited immigration from each country to the percentage in existence in 1890.  The 1920’s law was clearly meant to exclude certain nationalities.  The 1965 law, enacted as part of the civil rights movement, sought to establish a level playing field, with a 20,000 limit from any one country.  In 1976 a revision to the law made it necessary to have a visa number available at the time of filing, not just at the time of approval.  In 1990, Congress increased employment based immigration from 54,000 to 140,000, and changed the per country limit to 7% of the numbers.  That’s still the law today.

Once a month, the State Department publishes a visa bulletin advertising what priority dates in each category will be permitted to apply for a green card the next month.  Essentially, if an immigrant’s priority date is earlier than the published date, they can apply.  For example, if a person’s priority date is July 1, 2010, and the visa bulletin shows a date of June 30, 2010, they can’t yet apply, but if that date were July 1, 2010 or after, they could apply.  The system is designed to let people with an earlier date in the queue apply first. 

One strange thing about the visa bulletin is that each version supercedes and overrides the previous bulletin.  For example, using the July 1, 2010 priority date from before, if the immigrant applied for a green card during a month when the visa bulletin showed a July 1, 2010 date, but then the next month the bulletin published a June 1, 2010 date, the case could not be approved in that month, but would remain pending, like on a shelf somewhere, until the published date was once again later than the person’s priority date.  Because the usual bureaucratic process of approving a case usually takes at least six months and often more, the visa bulletin date can in fact retrogress instead of progress, causing the person to be stuck with a pending case and a visa bulletin with dates earlier than the person’s priority date.  The immigrant must then wait until the visa bulletin publishes a date later than the person’s priority date to receive final approval on the green card.  It’s a totally crazy system.

To address this anomaly, President Obama announced in November 2014 that a visa modernization process would be implemented.  When the visa bulletin was published on September 9, 2015, it had for the first time two dates for each category of immigrant, one to reference for filing applications, and another to consult for approval of the green card.  This dual date system was intended to allow immigrants to file sooner for their green cards so that by the time the bureaucratic process was completed, the final approval would issue without delay. In other words, since the 1976 law states an immigrant must have a visa number available at the time of filing, but bureaucratic delays make it simply impossible for a green card to be approved in the same month the application is filed, they have devised two dates to accommodate filing ahead of time so the final approval can come more quickly.  This was seen as a positive improvement to the system. 

Then came the fakeout.  Another October visa bulletin was issued on September 25, 2015 which stated, “This bulletin supercedes the bulletin for October 2015 that was originally published on September 9, 2015, and contained Dates for Filing Applications long used by the Department of State for internal processing purposes.”  It isn’t hard to draw the conclusion from this statement that a monumental error must have been made in issuing the September 9, 2015 visa bulletin.  Some kind of internal government miscommunication.  The people affected by the mistake were all from China, India, Mexico and the Philippines because those countries have different dates for each particular category due to the imposition of the 7 percent per country limits set in 1990.  In the case of China and India, the impacted category was advance degree professionals.  The date for China was changed from May 1, 2014 back to January 1, 2013, a difference of one year and five months.  The date for India went from July 1, 2011 to July 1, 2009, a two year jump backward.  For the Philippines, the professional and skilled worker category went from January 1, 2015 to January 1, 2010, a five year retrogression.  And married Mexican immigrants with U.S. citizen parents moved a year and five months from October 1, 1996 to May 1, 1995.  The difference, of course, between this retrogression and other times the visa bulletin dates are changed for the worse is that no one has had a chance to utilize the October visa bulletin since it was not set to go into effect until tomorrow, October 1, 2015.  For example, an advance degree professional from India with a priority date of July 1, 2010 was eligible to file for a green card based on the September 9 visa bulletin for October 2015, because the date for filing was set at July 1, 2011, but was not eligible under the September 25 revised visa bulletin for October because the date was changed to July 1, 2009. 

The visa bulletin fakeout happened on a Friday afternoon, and by this past Monday September 28, 2015, a class action lawsuit was filed, a White House petition initiated, and a grass roots campaign organized to send flowers to the agency heads in Washington D.C. pleading for mercy!  So, with all this outrage, the lawsuit, the grassroots organization, what is likely to happen?  One need only look at history to have a clue.  As unbelievable as it may seem, this fakeout happened back in 2007.

The same public outcry occurred in 2007, and within just a few weeks the State Department and the Immigration Service agreed to let the impacted immigrants, who by all accounts were more numerous than the group impacted now, to file green card applications in a 30 day window.  In 2007 there was a threatened class action lawsuit, a flowers campaign, and members of Congress breathing down the neck of the agency.  Reason prevailed and the agency did what was honorable, to recognize the hardship of those who acted in reliance on the earlier bulletin.  By allowing a narrow window of time within which to file, the agency would not be allowing more immigrants to get green cards than is allowed by Congress.  The final approval dates still supercede the filing dates which are published, and so those who file in such a window may see their cases take a little longer to be approved.  But there is a distinct advantage to having a green card application filed and in process, including the ability to obtain special work and travel permission, the freedom in some cases to get a promotion or move to a better job, and the ability to have children who might otherwise become too old be included in the application   There is a lot at stake this year, and everyone is hoping the agency will do the right thing. 

Nothing is going to happen, however, without the active involvement of concerned people.  In the immediate short term, people should sign the White House petition, which has over 9,000 signatures but needs another 91,000, and contact their elected representatives.  If you want to share your case details with the lawyers handling the class action, visit Greg Siskind’s website at visalaw.com.  Long term, the per country limits should either be removed or increased.  The iSquared Act would increase the per country limit to fifteen percent, and is a step in the right direction.

Visa Bulletin Class Action Lawsuit Filed

"This case is about what happens when thousands of law-abiding, highly skilled immigrants spend millions of dollars preparing to apply for green cards in reasonable reliance on an agency’s binding policy statement, only to find out at the last minute that a hapless federal bureaucracy has abruptly, inexplicably, and arbitrarily reneged on its promise."  That was the opening line to the class action lawsuit filed this evening by immigrants who were impacted by the Visa Bulletin Fakeout.  While the lawsuit recounts the cases of the plaintiffs, the lawyers who filed the lawsuit are certainly going to be looking for additional plaintiffs.  Those affected by the Visa Bulletin Fakeout can go to this website to register as potential class members.  READ THE LAWSUIT HERE.

Visa Bulletin Fakeout - Sign the Petition

Words cannot express how frustrated I am with the Department of Homeland Security and the Department of State.  Just weeks after announcing a "visa modernization" improvement with two visa priority date charts, which I blogged about as a positive improvement, the DOS has yanked back the priority dates for those eligible to apply for green cards by two (2) years!  What that means is that families, not just hundreds but thousands of families, who had hopes to apply for a green card in October, and who have worked diligently over the past weeks to collect documents, get medical exams, pay immigration lawyers like me, are suddenly with only a few days notice having their hopes and dreams dashed by what appears to be a government mixup.  But far and away the most frustrating thing is that this very thing happened before.  In 2007, the State Department moved all dates to "current" status, then before the month in which they would accept applications came, they yanked the dates back.  At that time, a class action lawsuit was prepared, and a "flowers campaign" started by Indian immigrants who sent flowers to the agency asking for help and sympathy.  This was referred to in the Times of India as a Gandhigiri, a peaceful act of protest.  The agency responded by allowing the filings to occur within a 30 day period.  So the protest and public outrage was a success in 2007.

I can understand that people make mistakes.  I have made some myself.  But the agency must own up to this mistake, and allow those who have relied upon their earlier published visa bulletin to file within a short 30 day window.  For this, someone has started a White House Petition.  I was among the first to sign it, and I hope others will do so as well:

Obama Visa Modernization - Visa Bulletin Just Got Better

As part of President Obama's Executive Action announced November 2014, the gate that opens and closes the door to liberty just received two doors - one for those who can apply for green cards and a separate door for those who can be approved.  Until now, the visa bulletin, which summarizes the dates of available priority dates for those with approved immigrant petitions, has only had one list of dates, both for those who can apply and those who can be approved.  This has created difficulties that are far too complex to describe here, but suffice it to say that it was a poorly conceived process which held back those who could file for adjustment of status.  Now there are two different dates to consult - one list is for "Application Final Action Dates" which is for those who can be approved for the green card, and one is for "Dates for Filing Applications" which is for those who can file for adjustment of status, and then remain pending until the Final Action Date is reached.  This new system appears to allow immigrants to file for adjustment sooner than they would otherwise have been able to do, which has a variety of positive implications.  First, dependents who might otherwise "age out" by turning 21 may be able to preserve status by filing for adjustment of status within one year of the visa availability date.  Second, those who are in other visa categories which do not allow extension of status beyond the limits of the visa (such as L-1B) may be able to avoid having to get an H-1B because dates for filing may come current for them sooner, allowing them to apply to adjust status.  Upon the filing of an adjustment of status application, each applicant is allowed to apply for work and travel permits, which may reduce the need for extension of nonimmigrant status sooner.

As an example, effective October 1, 2015, Indian born applicants in the Employment Based Second (EB-2) category (EB-2 India) will have a Final Action date of May 1, 2005, which means that if their Priority Date (the date the PERM Labor Certification was filed, which is then assigned to the I-140 Immigrant petition) is on or before May 1, 2005, they can be approved for permanent resident status.  In the old system, that would also be the date the USCIS would accept for adjustment of status filings.  But with the new visa bulletin, the Dates for Filing shows EB-2 India at July 1, 2011, which is six (6) years later than the Final Action date.  This means that those EB-2 India applicants whose priority dates fall on or before July 1, 2011 can file adjustment of status applications as of October 1, 2015, even if they can't yet be approved for the status.  Their cases can remain pending adjustment of status until the Final Action date moves forward to their priority date.  This is great news for many families.

What is unclear as of this writing is whether the 3 year extensions of H-1B status beyond the 6 year maximum may be negatively impacted.  Such extensions, allowed under the AC21 law, depend on a visa date not being immediately available.  It is not clear whether the agency will use the Final Application Date or the Application Date to determine whether a visa number is available for use.  

Overall, this is a very positive change to the system, and represents a true executive modernization of the visa system, without having to resort to the gridlocked Congress.  

DAPA 0, H-4 EAD 1

In two separate opinions authored by separate courts, the judiciary allowed H-4 EAD applications to proceed, and continued to hold back DAPA hopefuls from receiving EADs (Employment Authorization Documents, work permits basically).  

DAPA and expanded DACA: The State of Texas and other states sued DHS over Deferred Action for Parents of Americans (DAPA) and an expansion of the DACA program to remove the age cap and issue 3 year EADs, arguing the State of Texas would lose money by issuing driver's licenses to those who received DAPA and expanded DACA.  The District Court in Texas blocked the program by issuing a court order (an injunction), and on May 26, 2015, the Fifth Circuit Court of Appeals in a 2 to 1 decision upheld the injunction.  So for now, at least until the Supreme Court takes up the case, DAPA and expanded DACA continue to be on hold.

H-4 EADs: A group of technology workers who used to work for Southern California Edison sued DHS over the regulations allowing work permits for H-4 dependent spouses of those H-1B workers who have had an immigrant petition approved on their behalf or who are eligible for extensions beyond the sixth year of H-1B status due to the initiation under certain circumstances of a green card process.  On May 24, 2015, the District Court in the District of Columbia denied the tech workers' request to issue an injunction like the one in the DAPA case.  So H-4 EAD applications will proceed.  Today is the first day allowed for H-4 EAD applications.  

HR Strategies to Attract and Retain Global Talent

Join Speakers Brent Renison and Tifani Parrilli on the morning of June 19, 2015 in Portland for an informative discussion of visa options! We submitted the program for SHRM and HRCI credits (1 PDC for SHRM and 1 Global and/or HR General for HRCI).  This one hour presentation is intended for human resources professionals who manage recruitment and are responsible for administration of visa sponsorship programs.  Topics covered will include intracompany transfers, specialty occupation work visas, extraordinary ability categories, and country specific visa categories.  Some familiarity with visa processes is helpful but not necessary.  For more information see our SEMINARS page.

Illegal Immigration - Why Not Just Come Legally

I am asked frequently why people who immigrate illegally don't just come here legally.  That's a good question, and it deserves a good answer.

Estimates from the U.S. Department of Homeland Security, the Pew Hispanic Research Center and USCIS show that 59% of all illegal immigration consists of people from Mexico.  Yet State Department Statistics show that only 15.6% of Mexican citizens who apply for business and tourist visas are refused.  Citizens of France, a more developed country in comparison, have an even higher rate of denial at 18.8%.  So what gives?

French citizens are allowed visa free travel, unless they are ineligible for the visa waiver program for some reason such as criminal convictions.  That's why the only people who apply for visitor visas from France, for example, usually have some kind of special issue that needs reviewing.  Mexican citizens, on the other hand, do not enjoy visa free travel, and are required to obtain a visa first from the State Department before coming even for a day trip to go sightseeing.  

Visitor status (technically, the B-1/B-2 visa valid for business (B-1) or tourism (B-2)) does not permit work.  It allows meetings, attending conventions, and going to Disneyland, but not working there.  Obtaining a visitor visa also requires the person to rebut the presumption of immigrant intent (see INA 214(b)).  Yes, the United States presumes every visitor to be an immigrant unless the person can show that they are not intending to immigrate (stay here permanently), and since a visitor status is inherently a nonimmigrant classification, the two don't mix.  If you can't overcome the presumption, you are denied.  In other words, don't bother applying if you're poor and don't have any assets.

Because visitor status does not permit work, and because even obtaining a visitor visa requires the person show they are not likely to immigrate to the country, the people who apply for visitor status from developing countries more likely to be wealthy business people with extensive property holdings, and thus have the ability to show they are not likely to immigrate.

A comprehensive treatment of the visa categories which allow work in the United States, or allow a person to immigrate to the U.S., is impossible in a short blog post such as this.  But suffice it to say that the United States does not have very generous work authorization schemes on the books.  The U.S. caps professional workers (for jobs requiring a bachelor's degree in a specific field) at 85,000 nationwide per year, and just received 233,000 applications for those limited numbers in a 5 day filing window April 2015.  The only real visa for non-professional work is the H-2B program, capped at 66,000 per year, which is designed for seasonal, peak load, one time occurrence, or intermittent work.  It is used by some summer agricultural employers, and some winter ski resorts. Employers must engage in a complex recruitment effort to make sure U.S. workers have a chance to apply first.  Annual quota number and limitations on the program itself make it unusable for most employers.  

If you want to immigrate to the U.S., as opposed to just coming here temporarily, you need employer sponsorship or family sponsorship.  Most categories (with the exception of positions requiring a master's degree or a bachelor's degree plus 5 years of progressive experience) take many, many years to result in permanent resident status (the green card).  Even with a parent who is a U.S. citizen, an adult child of a U.S. citizen from Mexico will wait 20 or 30 years or more to immigrate, as the State Department is processing those with filing dates from the mid 90's and they inch the dates forward a few weeks every month, doubling the waiting time.

The fact is, we have a 1980's style immigration system that was founded in 1952 at the height of McCarthyism, and last updated to increase visa numbers significantly in 1990, when Tim Berners-Lee created the first web server which would serve as the foundation of something called the "world wide web" released in 1991.  We have been living in the 1980's since that time, and the significant immigration law changes in 1996 only created a more difficult path to legalization for immigrants than at any time since the Alien & Sedition Acts of 1798.  Income inequality in Mexico and the enormous wage gap between U.S. and Mexican wages creates an incentive for Mexican citizens to seek work in the United States despite the lack of a working visa system.  Many who come to the United States seeking work do so because of poor credit markets for entrepreneurs who seek to expand their business operations in Mexico.  Working for a few years in the United States can enable a business owner to hire more people, gain needed supplies, or expand operations.  

This blog does not advocate for illegal immigration.  Congress advocates for illegal immigration every day it fails to pass bi-partisan immigration reform.

HR Certification Institute Approved Provider Parrilli Renison

We are pleased to announce that Parrilli Renison has been listed by the HR Certification Institute as an Approved Provider, which entitles us to submit our HR Seminars to HRCI for pre-approval of PHR, SPHR and GPHR recertification credits.  We have submitted an upcoming June 19 seminar entitled "HR Strategies to Attract and Retain Global Talent" to HRCI for review.  Please visit our SEMINAR listings for more information.

233,000 H-1B Filings for 85,000 Slots in 5 days

UPDATE: April 14, 2015 - USCIS has announced that premium processing of H-1B petitions selected in the lottery will begin on April 27, 2015.

Employers' chances of attracting and retaining global talent just got worse.  USCIS has received 233,000 filings for only 85,000 H-1B slots this entire year, all received within a 5 day window.  With close to three times more cases filed than Congress allows, chances of obtaining an H-1B work visa this year are about 1 in 3.  That means that a majority of those international students who obtain U.S. degrees and a job offer will have to leave the country.

USCIS will now undertake a random lottery to determine which of the filings will be accepted and which will be rejected.  The agency will begin premium processing of the lottery winners no later than May 11, 2015, according to the press release.

How does your Congressperson feel about the cap?  Ask them.  Go to the House of Representatives website and look up your Representative by zip code.  Let them know what you think about the 65,000 regular cap, which was set back in 1990, and the 20,000 U.S. Master's degree exception to the cap set over a decade ago.

Some things to know about the H-1B cap are that the quota does not apply to someone who already has an H-1B, or for positions with U.S. higher education institutions or those non-profits affiliated with them, and doesn't apply to non-profit and government research organizations.