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Don’t Forget Skilled Workers Who May Have to Wait For A Few Centuries Before Getting the Green Card

Hillary Clinton’s acceptance speech was so warm and embracing of immigrants when compared to Donald Trump’s acceptance speech a week earlier. These were some of her key remarks on immigration:

We will not build a wall. Instead, we will build an economy where everyone who wants a good-paying job can get one. And we’ll build a path to citizenship for millions of immigrants who are already contributing to our economy. We will not ban a religion. We will work with all Americans and our allies to fight terrorism.

I believe that when we have millions of hardworking immigrants contributing to our economy, it would be self-defeating and inhumane to kick them out.

Comprehensive immigration reform will grow our economy and keep families together – and it’s the right thing to do.

Compare these words to Trump’s speech when he only spoke about how immigrants would bring doom and gloom, and thundered that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens.”

All this is so refreshing and noble when Clinton speaks about building a path to citizenship for millions of immigrants, enacting comprehensive immigration reform and not profiling a group of immigrants solely because of their religion. However, not a word was said about skilled immigrants who are already in the pipeline for a green card, but for the fact that their priority dates have not yet become current. Most of these skilled immigrants were born in India and China who are caught in endless backlogs because of a limited supply of green cards each year set by Congress in 1990, and further stymied by annual caps for each country. We hope that Clinton also would include these immigrants in her forthcoming speeches referencing immigration, who have always been legal and are employed in good paying jobs, as part of comprehensive immigration reform.

David Bier at the Cato Institute has emerged as a fresh and new scholarly voice on immigration. It has always been known that an individual who got sponsored by an employer today in the India employment-based third preference (EB-3) would need to wait for about 60 years before he or she got the green card. In Bier’s new report, No One Knows How Long Legal Immigrants Will Have To Wait, he calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards.” Ironically, if these workers, by some stroke of luck were able to file I-485 applications in the past, such as the class of 2007 adjustment applicants, their children whose age was artificially frozen below 21 under the Child Status Protection Act will be mature adults before they can immigrate with their parents as “derivative children”. On the other hand, if a child’s age could not be frozen through the filing of an adjustment of status application in past years when the priority date may have become current, they will not be able to remain “derivative children” under the CSPA in the unlikely event that their parents may qualify for green cards in their life time and if the children are still alive.

It is readily obvious that Congress needs to infuse a greater supply of green cards each year in the EB categories, and even lift the country limits, as countries like India and China get more adversely impacted than Lithuania or Finland. While it is desirable that Congress fix this problem immediately, we know that Congress is mostly paralyzed at present. However, one should at least be giving these unfortunate skilled workers top priority in any comprehensive immigration deal if Clinton becomes president and can achieve her stated goal to implement reform within the first 100 days of her presidency. Trump, on the other hand, with his America first policy may be more inclined to curb legal immigration rather than fix it, leave alone expanding it.

While different groups of immigrants justly advocate for expanded immigration benefits, it is important that they all remain united. It may be tempting for skilled legal workers to only seek immigration reform for their group as they have been legal while undocumented immigrants broke the law. However, it is not that undocumented people choose to remain undocumented. They too want to become legal but the current immigration system does not provide adequate pathways for different categories of immigrants to become legal and get onto a pathway to permanent residence. And for those who are here legally and on the pathway to permanent residence, they have to wait impossibly for decades, and now Bier shockingly speculates that it may be centuries. Legal skilled workers, many of whom are on H-1B visas, should not be jettisoned because it has become fashionable to think that they away jobs from US workers. They compliment the US workforce, and most have gone through the labor certification process that required their employers to first test the US labor market before proceeding with their green card applications. Once they get green cards, there will be a surge of entrepreneurial talent in the nation’s economic blood stream.  Finally, immigrants already in the US should not pull up the drawbridge behind them and block new H-1B workers. It is important for fresh and talented immigrants to come to the US to achieve their dreams. All we need is an immigration system that has many more pathways to America and is consistent with the needs of the nation in the 21st century.

The present immigration system is broken and can be likened to a terminally ill patient who is suffering from multiple organ failure. The goal for treating such a patient is not just to repair one organ, such as the heart, and leave the other organs in a state of disrepair. This approach will certainly not nurse the patient back to health. All the vital organs in the patient must be revived at the same time. The same holds true for our immigration system, which is like a terminally ill patient. All its components, like body organs, must be repaired. This includes but is not limited to more visas for skilled immigrants and entrepreneurs, faster pathways for loved ones to unite with their family in the US, more opportunities for investors and essential workers, and also a path for the 11 million undocumented to legalize their status. We must also not forget to reform the system for those seeking refuge in America from persecution and other kinds of crimes such as trafficking and sexual violence, and provide more waivers for those who would otherwise be deportable if they have ties with the US or can demonstrate rehabilitation. While Clinton’s message for immigrants is positive and upbeat, she must remember to include all affected immigrant groups, especially legal skilled workers who have been hopelessly waiting for their green cards.

Save the Children Under the New Visa Bulletin

The changes  made to the priority date system in the October 2015 Visa Bulletin have been positive and will provide much relief to beneficiaries of visas petitions caught in the employment and family-based backlogs. There will be two dates for the very first time: a filing date and a final action date. The filing date will allow the filing of adjustment of status applications if eligible foreign nationals are in the United States and the filing of visa applications if they are outside the country. The final action date will be the date when green cards can actually be issued.

The October 2015 Visa Bulletin will thus allow the filing of applications prior to the date when green cards actually become available. Until now, the cut-off date was based on when visas were actually available.  While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we advocate that the age of the child also be protected under the Child Status Protection Act (CSPA) at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.

I celebrated the broadening of the interpretation of visa availability in my last blog,  Godot Has Arrived: Early Adjustment Of Status Applications Possible Under The October 15, 2015 Visa Bulletin,  and was also happy to note that these changes were consistent with what Gary Endelman (who is now an Immigration Judge) and I have propounded since 2010 in The Tyranny of Priority Dates. As a background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application earlier than before, along with all the accompanying benefits that arise, such as job portability under INA 204(j), work authorization for the principal and derivative family members and travel permission. Similarly, CSPA protection should also be made available to children who may age out at the time of the earlier filing date so as to maximize the chance for children to obtain their green cards with the parent.

Before the government finalizes all the details, I strongly advocate that if there is now a broader interpretation of visa availability for purpose of filing an I-485 adjustment application at the filing date, this same filing date should lock in the CSPA age too. Otherwise the whole scheme collapses like a house of cards if there is no consistency. If there must be visa availability to file an I-485 under INA 245(a)(3) in order to enjoy 204(j) portability, it makes sense to use the same new interpretation of visa availability to lock in the child’s age at the filing date.  Imagine filing an I-485 for a minor at the time of the filing date who is not protected under the CSPA, and once s/he ages out, is no longer eligible to even be an adjustment applicant, and has to leave the US while the parents can continue as adjustment applicants.

There’s also no point in providing the earlier filing date in the new visa bulletin for immigrant visa applicants overseas, otherwise they get no tangible benefit, except to be able to lock in the child’s age earlier at the time of the filing date under the CSPA. (There is potential for advocating that beneficiaries who have filed visa applications overseas under the earlier filing date be paroled into the US under INA 212(d)(5) while they wait for the final acceptance date to materialize, but I will reserve this for a future blog).

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed under the new interpretation of visa availability pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent.

Some of my esteemed colleagues have pointed out that one who does not seek to acquire permanent residency within the time of the filing date, but rather, seeks to acquire permanent residence within one year of the final action date may lose out under the CSPA. This may well be the case. However, it is far more advantageous for a child’s age to be locked in at the earlier filing date than the final action date. In order to be consistent and for this scheme to withstand potential legal challenges,  under the broader definition of visa availability which must be applied consistently, permanent residency should be sought within one year of the filing date rather than the final acceptance date.

Gary Endelman and I fine tuned our proposal in 2014 by advocating  that visa availability ought to be based on the just one visa being saved in the backlogged preference category, such as the India EB-3,  like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this  would be consistent with INA §245(a)(3). Similarly, this new visa availability ought to also protect the child from aging out under INA 203(h)(1)(A). Filing dates could potentially advance and become current.  Admittedly, it is not expected that the government will follow our “Thanksgiving turkey” proposal to the hilt, at least not yet, and it has been suggested by Greg Siskind on his Twitter feed that the filing dates will not move much in the first few months. The filing of early I-485 applications will give Charlie Oppenheim at DOS a better sense of how visa numbers will actually be utilized for the rest of the year.  “The goal of the changes is not to so much to allow people to file early as to have more accurate final action dates,” according to Siskind.

Regardless of whether the DOS and USCIS wish to advance the filing dates rapidly or not, it is important to protect a child from aging out at the time of the earlier filing date. Apart from ensuring that the parent and child immigrate together, this consistency will also make the new visa bulletin legally sound.  

EVERY COUNTRY EXCEPT THE PHILIPPINES: NEW DEVELOPMENTS IN OPT-OUT PROVISION UNDER THE CHILD STATUS PROTECTION ACT

Section 6 of the Child Status Protection Act (CSPA) allows beneficiaries of I-130 petitions that have been converted from the Family Second Preference (F2B) to the Family First Preference (F1), after the parent has naturalized, to opt out and remain in the F2B. The American Immigration Council’s February 2015 advisoryprovides a comprehensive overview of the CSPA.

While the wait in the F1 is generally less than in the F2A, in some instances, it is possible for the F1 to be more backlogged than the F2B.  The Philippines has been the prime example, and was the only country where the F1 was worse off than the F2B for several years. Thus, the issue of whether to opt out of the F1 mainly concerned people born in the Philippines for several years.  Since June 2014, this has changed. The Philippines F1 has been doing better than the F2B, and there has been no need for beneficiaries of I-130 petitions born in the Philippines to opt out.   On the other hand, since June 2014, with the sole exception of Mexico, beneficiaries born in all other countries are better off under the F2B than the F1. This changed too for Mexico as of October 1, 2014, when even Mexican born beneficiaries started doing better under F2B than F1. Under the latest State Department Visa Bulletin of March 1, 2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html, except for the Philippines, beneficiaries of I-130 petitions born in all other countries are better off under the F2B than the F1.

An quick analysis of how the F-1 has compared to the F2B since 1992 is provided below (courtesy David Isaacson):

According to the list of Family Worldwide priority dates for FY1992-2014 available at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_worldwide_online.pdf, F1 has always been ahead of F2B, with a brief exception in FY-2001 (when F1 but not F2B became briefly unavailable in August and September 2001), until June 2014, when F2B pulled ahead (at first it was just 01APR07 for F2B versus 22MAR07 for F1, then the gap widened).  F2B has also been ahead in the three Visa Bulletins so far of FY2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-october-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-november-2014.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-december-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-january-2015.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-february-2015.html , and http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html.

For the Philippines, according to the FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Philippines_online.pdf, F2B pulled ahead of F1 in August of 1992, and stayed ahead until July of 2014.  Beginning in August 2014, Philippines F1 pulled back ahead of Philippines F2B, and it too has stayed that way October 2014-March 2015.

As for Mexico, the Mexico FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Mexico_online.pdf  shows F1 generally ahead of F2B, but there have been more anomalies over the years.  At the end of FY1996 and in February-March of 2002, F1 was unavailable but F2B wasn’t.  There was an inversion in July 2001 right before both became unavailable for the remainder of FY2001.  In July-September of 2005, Mexico F1 retrogressed all the way to January 1, 1983, while F2B was at January 1, 1991.  In May of 2006, Mexico F2B again pulled slightly ahead of Mexico F1 before falling behind again in the remaining months of FY2006.  In FY2007, Mexico F2B was ahead of Mexico F1 in May 2007 through September 2007.  In FY2009, Mexico F2B pulled ahead, or rather F1 feel behind, during July-September 2009.  The next inversion after that was indeed October 2014, and then it has stayed inverted since.

Section 6 of the CSPA has been codified in Section 204(k) of the Immigration & Nationalization Act (INA) entitled “Procedures for unmarried sons and daughters of citizens,” which provides:

  • In general. – Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter’s classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter be­ing an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to clas­sify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
  • Exception. – Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter’s eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.
  • Priority date. – Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
  • Clarification. – This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.

What Section 204(k) means is that an F2B beneficiary of an I-130 petition is automatically converted into F1 upon the naturalization of the parent who was previously a lawful permanent resident (LPR).  However, such a beneficiary may opt-out, either prior to the conversion or after the conversion, by requesting such an election through a written statement.  If an election has been made, the son or daughter would be considered under the F2B as if such naturalization of the parent never took place.

At issue is the interpretation of the phrase “in the case of a petition under this Section initially filed for a alien’s unmarried son or daughter’s classification as family-sponsored immigrant under Section 203(a)(2)(B).”

In a previous USCIS Memo dated March 23, 2004 (March 23, 2004 Memo), the USCIS opined that the opt-out provision applied only to a beneficiary whose initial Form I-130 was filed after he or she turned 21 or over as  the unmarried son or daughter of an LPR.  If on the other hand, the I-130 petition was filed by an LPR on behalf of his or her child when the child was under 21 years of age, and the child attained the age of 21, and then the parent naturalized, the opt-out provision would no longer be applicable according to that Memo.

Fortunately, the USCIS reversed itself in a subsequent Memo from Michael Aytes, dated June 14, 2006 (June 14, 2006 Memo), and opined that the phrase “initially filed” would be applicable to the beneficiary who was sponsored as a minor.  The June 14, 2006 Memo generously notes that the prior policy had a perverse result of older siblings who were originally sponsored under F2B acquiring permanent residency more quickly than the younger siblings who had to wait longer under the F1.  The Memo also notes that it is reasonable to interpret “initially filed” as “initially filed for an alien who is now in the unmarried son or daughter classification.”

At present, beneficiaries born in all countries excepting the Philippines may opt out from F1 and remain in F2B, and thus the guidance provided in the March 23, 2004 Memo regarding contacting the USCIS Officer in Charge in Manila may no longer be relevant. According to a April 2008 Memo from Donald Neufeld (April 2008 Neufeld Memo), one must file a request in writing at the USCIS District Office with jurisdiction over the beneficiary’s residence. For example, one would have to make such a request with the New Delhi Field Office (which covers India, Pakistan, Bangladesh, Nepal, Bhutan, Sri Lanka, Afghanistan, and the Maldives) if the beneficiary resides in any of these countries.   The question is whether all USCIS District offices are set up to accept unsolicited requests of this sort, and whether such a request would truly be effective.

In addition to writing to a USCIS District Office, one should not be prevented from also writing to either the Service Center that processed the I-130 petition or to the National Visa Center, if the approved I-130 petition is already residing there. It may also be well worth it to notify the USCIS at the time of filing an adjustment of status application if the beneficiary resides in the United States.  For instance, if the beneficiary has automatically converted to F1 and finds that F2B is more advantageous, he or she should still go ahead and file the adjustment of status application accompanied by a letter requesting that he or she be allowed to opt-out of F1. The adjustment-application option arguably complies with the April 2008 Neufeld Memo because a family-based adjustment filing with the lockbox is made with the expectation that it will likely be ultimately forwarded to the local District Office for an interview, by way of the National Benefits Center.

The timing of making such a request is also crucial. It is probably advisable to make the request to opt out just prior to the priority date becoming current or at the time when it has become current. While one may in principle be able to reverse an opt-out, it is preferable to   wait until the F-2B is current or almost current before opting out.  One would not want to be the test case for how many times you can opt out, and reverse, and reverse your reversal, if the relative positions of the F-1 and F-2B keep changing over time before the priority date is current.

Finally, the USCIS has always taken the position, affirmed by the Board of Immigration Appeals in Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011) that it is the beneficiary’s biological age that is locked in when the petitioner naturalizes and not the protected CSPA age. Hence, if the beneficiary, who has already turned 21, has his or her age protected under the CSPA so as to remain in the Family Second Preference (2A), as the minor child of a permanent resident parent, then it may not be advisable for the parent to naturalize if the child would be disadvantaged under the F1, or if there is an opt out, under the F2B.  Zamora-Molina further held that the child could not opt out from F1 to F2A, only to F2B.  It is thus important to strategically consider whether naturalization by the parent would be worth it if it would disadvantage the child’s ability to more quickly receive the green card.

(The information contained in this blog is of a generalized nature and does not constitute legal advice).  

LET’S HOPE THAT’S WHAT IT MEANS: DOES EXECUTIVE INITIATIVE REALLY PROVIDE FOR EARLY ADJUSTMENT OF STATUS?

By Gary Endelman and Cyrus D. Mehta

Most of the commentary and attention on the recent blizzard of White House and DHS memoranda on immigration reform quite properly fell on executive initiatives to bring the undocumented and their parents in from the shadows.  This is what the Administration clearly cares most about for logical political reasons. The White House perception, rightly or wrongly, is that the ever growing Hispanic constituency that the President wants to win over simply is not deeply concerned with having a more rational legal immigration system. Yet, there are a variety of positive steps that DHS Secretary Johnson outlined which do offer real benefits to workers and employers alike who know suffer from the sclerotic effects of chronic visa backlogs. The most promising innovation is the anticipated ability for the beneficiaries of approved I-140 petitions to apply for adjustment of status even in the absence of current priority dates. That, we all enthused, was something to rally round..  
Now that we have had a chance to exhale, a nagging doubt clouds this emerging optimism: Is early adjustment of status really what is contemplated?  While White House briefings and talking points certainly suggested this was the case, a stubborn yet deliberate reading of the various memoranda uncovers no explicit mention of early adjustment, only an intention to foster clarity, predictability, and transferability once the USCIS has approved an employment-based immigrant visa petition, Form I-140. DHS Secretary Johnson offers only the following:

“ I direct that USCIS carefully consider  other regulatory  or policy changes  to better assist and provide stability to the beneficiaries of approved employment-based immigrant  visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.”

Some doubting voices now raise up the possibility that the next step after I-140 approval will fall short of I-485 submission, perhaps only going so far as to allow for the granting of advance parole travel permission and issuance of employment authorization documents. We do not know if such doubts are justified but write now to explain why, if true, this is a very bad idea especially if it is offered without early I-485 submission as an alternative.
Let’s start with the reasons why allowing for early adjustment of status makes sense. We acknowledge that INA § 245(a) (3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).
The only regulation that defines visa availability is 8 C.F.R. § 245.1(g) (1), which provides: 
An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,  all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.
We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey, as we have proposed previously. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary. So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
We propose the following amendments to 8 C.F.R. § 245.1(g)(1), shown here in bold, that would expand the definition of visa availability:
An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
Allowing early adjustment of status with companion work authorization, travel permission, and AC 21-like adjustment portability  will make possible the green card on a provisional basis in all but name. However, this is not all. The most important benefit may be the freezing of children’s ages under the formula created by the Child Status Protection Act (CSPA). If the White House will only grant EAD and Parole to I-140 beneficiaries, but stop short of allowing adjustment, then, on a massive scale, their children will turn 21, thereby aging out, long before the magic time for I-485 submission ever arrives.  This is because Section 3 of the CSPA only speaks of freezing the child’s age when the petition has been approved and the visa number has become available. Also,  the child must seek to acquire lawful permanent resident status within one year following petition approval and visa availability. Since Matter of O.Vazquez, absent extraordinary circumstances, only the filing of the I-485 can do that. Under the current definition of visa availability, joined at the hip to the Visa Bulletin, they have no hope. Only through a modified definition coupled with the notion of provisional adjustment can they retain the CSPA age. This is why invocation of early adjustments themselves, not merely EAD and Parole, to beneficiaries of I-140 petitions is so manifestly necessary. However, precisely as in the INA, the CSPA contains no definition of visa availability. A change in the applicable regulatory meaning along the lines we suggest will apply to CSPA and prevent the children of I-140 beneficiaries from aging out.  Granting the EAD and advance parole will sadly have no such effect.  Only early adjustment can do that. This is especially relevant now since the Supreme Court in Scialabba v. Cuellar De Osorio substantially narrowed the utility of priority date retention. The redefinition of visa availability that we propose not only provides the legal underpinning for early adjustment of status but also allows the children of I-140 petition beneficiaries to derive a priceless immigration benefit through this family relationship that would otherwise be lost. Given the importance of preserving the age of a child under the CSPA, why only restrict early I-485 filings to beneficiaries of I-140 petitions? Our proposed redefinition of visa availability ought to also apply uniformly to beneficiaries of family based I-130 petitions too. 
It is entirely possible that the White House may realize all of this and more. We would be most happy to be rendered redundant. The best advice is that which is entirely unnecessary. Yet, unless and until we see it in writing, perhaps the time for celebration should be postponed.

(Guest author Gary Endelman is Senior Counsel at Foster)

DOS Releases Info on Cut-Off Date Calculations; November 2013 Visa Bulletin Shown Movement in China ‘Other Workers’ Category

The Department of State (DOS) recently released information about how it calculates visa availability cut-off dates. Separately, the Visa Office has released the latest November 2013 Visa Bulletin, which explains additional points and notes forward movement in the China employment-based third preference “Other Workers” category.

Visa availability calculations. DOS explained that each month, its Visa Office subdivides the annual preference and foreign state limitations into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and U.S. Citizenship and Immigration Services offices, grouped by foreign state chargeability, preference category, and priority date. If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example, if the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category will be Current. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 3,000 and there is demand for 8,000 applicants, it would be necessary to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.

The DOS noted that the FY 2013 employment annual limits were reached before the end of September, and no further allocation of numbers was possible after that time. Offices continued to process employment cases, submitted them in the normal manner, and such cases were then held in the Visa Office’s “Pending Demand” file. All eligible cases were then allocated employment-based numbers on October 1, 2013, under the FY 2014 annual limits.

DOS said that the number of 1-485 adjustment of status applications already filed in the employment third preference (on which U.S. Citizenship and Immigration Services (USCIS) has not yet finalized action) for countries other than India and the Philippines exceed the numbers currently available. These filings are the result of the cut-off dates for those countries having been advanced by over three years since April. DOS said that such demand must be considered in the determination of the monthly cut-off dates to prevent any unnecessary fluctuation in those dates.

The imposition of cut-off dates for some categories/countries has limited the number of applicants who have been able to file for adjustment of status with USCIS, and such applicants would not be included in the totals, DOS noted. In addition, new applicants are constantly becoming eligible for processing in categories for which cut-off dates do not apply, or for a category other than that in which they initially filed for status. Therefore, DOS said that the totals in the Visa Bulletin charts should not be interpreted to reflect the total universe of applicant demand. These totals only represent the amount of demand taken into consideration during the determination of new dates.

Visa Bulletin. The Visa Office noted in its November 2013 Visa Bulletin that:

It is important to remember that the establishment of a monthly cut-off or “Current” status for a numerically controlled category (preference or Diversity [Visa]) applies to those applicants who were reported prior to the allocation of visa numbers for that month. For example, all qualified applicants who were reported to the Visa Office in time to be included in the calculation of the September cut-offs, who had a priority date or rank-order number before the relevant September cut-off, would have been allotted visa numbers for September. There would be no expectation, however, that sufficient numbers would be available for the processing of cases which subsequently became eligible for final action during that month. Additional numbers may be allocated outside the regular monthly cycle, but only to the extent that such numbers remain available under the applicable annual limit. The availability of additional numbers is subject to change at any time and should never be taken for granted. This is especially true late in the fiscal year when numerical allocations are often close to or at the annual limits.

When applicants fail to appear 9r overcome a refusal (even for reasons beyond their control) during the original month of scheduled interview, they risk not having their case processed later in the fiscal year. This is because the establishment of a monthly cut-off or “Current” status for a numerically controlled category (preference or Diversity Visa) applies to those applicants who were reported before the allocation of visa numbers for that month.

China: Rapid forward movement of the cut-off date, as a result of there being insufficient demand to use all available numbers, allowed the category to reach the Worldwide third preference cut-off date in May 2013. The continued lack of demand has allowed the “otherwise unused” numbers available under that limit to be provided for use in the China employment third preference Other Workers category. The continued addition of those numbers has allowed the cut-off date for that category to reach the China third preference date for November. This is the same action which has been possible for the Other Worker category in other “oversubscribed” countries such as India and Mexico. A sudden increase in demand for China employment third preference visas could require corrective action in the China Other Worker cut-off date at any time.

The DOS’s information includes charts showing the estimated total number of visas available for each employment preference category and country for fiscal year 2014. Demand data used in the determination of the November 2013 employment preference cut-off dates are also included in the charts. The information is available at http://www.travel.state.gov/pdf/EmploymentDemandUsedForCutOffDates.pdf. The latest Visa Bulletin for November 2013 is available at http://travel.state.gov/visa/bulletin/bulletin_6168.html.

 

The Way We Count

By Gary Endelman and Cyrus D. Mehta

“Perfect numbers like perfect men are very rare.” Rene Descartes

Now is the time to change the way America counts green card numbers.  Congress is presently debating comprehensive immigration reform and grand events are likely to reshape the legal landscape. Yet, at such a seminal moment we ought not lose sight of the value of technical modifications that can have enormous consequences.  Most Americans, including virtually all policy makers, would be surprised to learn that the majority of green cards awarded each fiscal year go not to the principal aliens themselves but to dependent family members, thus reducing even further permanent migration to the United States. In fact, as the waiting lines over the past decade have grown ever longer, this pattern has become more pronounced.  A quick overview of green card distribution during the first decade of the 21st century quickly makes this evident.  Let us take employment based migration in the employment-based first preference (EB-1) category as our data sample. In 2000, there were 5,631 new arrivals under the EB-1, 2,241 went to the principal vs. 3,390 to family members. This means that family members accounted for 58.67% of EB-1.  In 2012, there were 1,517 new arrivals under the EB-1. 516 went to the principal & 1001 to family members. This means that family members accounted for 65.98% under the EB-1. Things are getting worse.
It need not be that way. Neither the law nor logic commend or require such a result. Without creating a single new immigrant visa, Congress can eliminate quota backlogs and restore relevance to a green card system that is sorely in need of such restoration. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression will quickly become a thing of the past. Nor is this merely something for idle academic debate. Rather, it is essential if the path to legal resident status for the undocumented is ever to mean anything. Under any conceivable iteration of CIR, even if there is an expansion of immigrant visa numbers in the preference categories, the undocumented will be relegated to the back of the green card line behind those patiently waiting under the legal system. Unless a solution is found to remediate the tyranny of priority dates, the undocumented like the ancient Israelites who left Egypt, will never enter the promised land.

Section 203(d) of the INA is the provision that deals with family members. Let us examine what INA § 203(d) says: A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent. There is nothing in INA § 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers.  Is there not sufficient ambiguity in INA § 203(d) to argue even under current law that family members should not be counted against the quotas?

There is no regulation in 8 C.F.R. instructing what INA § 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. § 42.32 only parrots INA § 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. § 42.32 does not provide further amplification on the scope and purpose of INA § 203(d). We acknowledge that INA 203(d) derivatives are wholly within the preference system and bound by its limitations.. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits. 

INA § 203(d) took effect under IMMACT 90. It still remains a mystery as to why INA § 203(d) was enacted. There was no need to do so since family members were counted in the pre-IMMACT90 quotas. No clear answer can be gleaned from the legislative history of IMMACT 90. Though family members were explicitly exempted from being counted in the House bill, such exemption was removed in conference with the Senate. Ultimately, Congress enacted INA § 201(d), which set a numerical limit of 140,000 for EB immigrants, and it appears that the intent of Congress in IMMACT 90 was to count family members in the final legislation. Was INA § 203(d) introduced to ensure that family members would be counted especially after the House sought to exempt them? Or was it the converse? Could INA § 203(d) have been a vestige of the House’s intent that was never taken out – to make sure that, even though these derivatives would  be counted against enlarged EB cap, they would not be left out in the cold but still get the same “green card” benefits as the principal?

If the Executive wanted to reinterpret INA § 203(d), there is sufficient “constructive ambiguity” here too for it do so without the need for Congress to sanction it. We have explained this in our prior article, Why We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center! But we do not want to end on such optimism and throw all caution to the winds.. Thus, we propose a simple technical fix in Congress, which is to exclude family members from the FB and EB quotas. We do not see why this cannot be accomplished as there is already a pedigree for such a legislative fix. The proposed wording to INA 203(d) would be a simple add on to the current text, such as: “All family members, including the principal alien applicant, shall be counted as one unit for purposes of INA 201(c) and 201(d) limitations. They shall not be counted on an individual basis.” Not only did Congress try to remove family members in IMMACT90, but also attempted to do so in S. 2611, which was passed by the Senate in 2006. Section 501(b) of S. 2611 would have modified INA § 201(d)(2)(A) to exempt family from being counted in EB cases. The EB and FB numbers ought not to be held hostage to the number of family members each principal beneficiary brings with him or her. Nor should family members be held hostage to the quotas. We have often seen the principal beneficiary being granted permanent residency, but the derivative family members being left out, when there were not sufficient visa numbers under the preference category during that given year. If all family members are counted as one unit, such needless separation of family members will never happen again.

Even an increase in the visa numbers in a reform proposal, which might seem adequate today, will again result in backlogs shortly based on the uncertainties with economic booms and busts as well as the varying size of families. An immigration system that does not count derivatives separately will have more of a chance to remain viable before Congress is again required to expand visa categories a few decades later. This will also go a long way in restoring balance and fairness to our immigration system. Sometimes even small things can cast a giant shadow.