December 4, 2023

Immigration Green Card

Immigration Is Good For You

Changing Visa Bulletin Could Save Immigrants And H-1B Visa Holders

9 min read

The current legal immigration system does not benefit the United States, according to immigration attorney Cyrus Mehta. He proposes advancing the dates in the State Department Visa Bulletin to provide relief for individuals waiting in family and employment-based backlogs, arguing that would help America retain talent it would otherwise lose. Representatives Raja Krishnamoorthi (D-IL) and Larry Bucshon, M.D. (R-IN) and more than 50 other members of Congress wrote a letter advocating this reform.

Charlie Oppenheim, who oversaw the monthly publication of the Visa Bulletin, disagrees with Mehta on making the Application Filing Dates current but supports him proposing the idea to encourage the State Department to examine all options. (Read an interview here.) Oppenheim (now with WR Immigration) thinks an Application Filing Date should only be listed as “current” if both the current level of qualified demand and the resulting demand from new filings is not expected to be greater than the applicable annual limit available during the next twelve months or so.

Mehta believes the State Department “has never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future.”

I interviewed Cyrus Mehta, who replied in writing, to understand better how changing the dates in the Visa Bulletin would affect family and employment-based immigrants.

Stuart Anderson: Why do many employment-based immigrants have such a long wait for their green cards?

Cyrus Mehta: The total allocation of visa numbers in the employment and family-based categories is woefully adequate. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. INA section 202 prescribes that the per-country limit for preference immigrants is 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.

These limits were established in the Immigration Act of 1990, and since then, the U.S. Congress has not expanded these limits for well over three decades. In 1990, the World Wide Web was not in existence, and there has been an explosion in the number of jobs as a result of internet-based technologies and other related technologies. Employers have sought skilled foreign workers to fill these positions, many of whom have been educated at U.S. educational institutions. Yet, the U.S. legal immigration system has not kept up to timely give green cards to immigrants who contribute to the country.

Due to the per-country limits, until recently, it was only India and China that were backlogged in the employment-based preferences, but now, under the August 2023 Visa Bulletin, all countries face backlogs. Still, India bears the brunt disproportionately in the employment-based categories, and the estimated wait time in the India EB-2 category is at least decades-long.

Anderson: What problems are caused by the long wait for permanent residence? How does it affect competitiveness and job creation?

Mehta: Skilled and talented foreign workers are limited in advancing their careers and job mobility. A promotion could result in restarting the sponsorship process through the employer. They also often cannot form their own startups if they have not obtained permanent residence. If wages are impacted due to a lack of job mobility, it obviously will affect competitiveness, and if startups cannot proliferate through the ingenuity and talents of foreign nationals, there will be less job creation.

Anderson: You have written that the State Department and the Biden administration could provide relief by changing the dates in the Visa Bulletin. Can you explain how this would work?

Mehta: The State Department Visa Bulletin consists of dual dates–Final Action Dates and Dates for Filing. The dates under the Final Action Dates determine when the green card can be issued to the foreign national, while the Dates for Filing indicate when the foreign national can file an I-485 application for adjustment of status. One easy fix is to advance the Dates for Filing to current so that many more backlogged beneficiaries of approved petitions can file I-485 adjustment of status applications.

Anderson: What would be the impact of this change?

Mehta: By being able to file I-145 applications, skilled foreign workers caught in the employment-based backlogs can get ameliorative relief such as an employment authorization document (EAD), travel permission and be able to exercise job mobility under INA section 204(j). Spouses and minor children can also avail of work authorization and travel permission after they file their I-485 applications.

Many more of the children of these backlogged immigrants would also be able to protect their age if the date for filing is made current. While it would be ideal for Congress to provide more immigrant visas so that people become permanent residents, in the face of Congressional inaction, allowing skilled workers to file I-485 applications would give them and their families more mobility and flexibility.

Anderson: Why do you believe the State Department has the legal authority to make this change in the Visa Bulletin?

Mehta: INA section 245(a)(3) allows for the filing of an adjustment of status application when “an immigrant visa is immediately available” to the applicant.

The State Department has historically never advanced priority dates based on certitude that a visa would actually become available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next Visa Bulletin, May 2012, a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007.

If the State Department were absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007. Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 may still potentially be waiting and have yet to receive their green cards even as of today.

Another example is when the State Department announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007, to August 17, 2007). It was obvious that these applicants would not receive their green cards during that time frame. The State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards.

More recently, the September 2022 Visa Bulletin had a Final Action Date of December 1, 2014, for EB-2 India. In the next, October 2022 Visa Bulletin the Final Action Date for EB-2 India was abruptly retrogressed to April 1, 2012 and then further retrogressed to October 8, 2011 in the December 2022 Visa Bulletin. If a visa number was immediately available in September 2022, an applicant under EB-2 India with a priority date of December 1, 2014, or earlier should have been issued permanent residence.

These three examples, among many, show that “immediately available” in INA section 245(a)(3), according to the State Department, has never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future.

Anderson: Why do you suggest that the Dates for Filing be advanced to “current”?

Mehta: Although INA section 245(a)(3) requires that an immigrant visa be immediately available to file an I-485, the Dates for Filing are based on an elastic view of visa availability and are generally ahead of the Final Action Dates by a few to several months. According to U.S. Citizenship and Immigration Services: “If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on this page that you may use the Dates for Filing chart.” While it is salutary that the Dates for Filing are ahead of the Final Action Dates by a few months based on an estimate of visa availability, there is no reason why the Dates for Filing cannot be set even more ahead of the Final Action Dates.

Taking this to its logical extreme, visa availability for establishing the Dates for Filing may be based on just one visa being saved in the backlogged preference category in the year, 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 used by a noncitizen beneficiary.

So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under the Dates For Filing, and this would be consistent with INA section 245(a)(3). This is reflected in the August 2023 Visa Bulletin as the first visa in the India EB-3 has a priority date of January 1, 2009. Hence, there is one available visa in the India EB-3 skilled worker, otherwise it would have stated “Unavailable.” The Dates for Filing could potentially advance and become current based on this available visa with a January 1, 2009 priority date in the India EB-3, thus allowing hundreds of thousands of beneficiaries of I-140 petitions to file I-485 applications.

This same logic can be extended to beneficiaries of family-based I-130 petitions.

Anderson: Do you believe a change in the Visa Bulletin would withstand any legal challenges?

Mehta: I would not rule out a legal challenge, but the administration should be able to defend such a challenge. As noted, the Dates for Filing are generally ahead of the Final Action Dates, yet to file an I-485 application under both Dates for Filing and Final Action Dates, a visa has to be immediately available under INA section 254(a)(3). There has thus far not been a legal challenge to the Dates for Filing concept in the Visa Bulletin, even though it has been ahead of the Final Action Dates. So long as Chevron deference exists, a court ought to give deference to the government’s interpretation of what it means for a visa to be immediately available.

Texas has taken the lead in challenging the Biden Administration’s immigration policies. However, the Supreme Court in United States v. Texas recently rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. While it remains to be seen whether the ruling in United States v. Texas could also impact Texas’s ability to challenge a rapid advance in visa bulletin dates, the analyses of the majority and the concurrence, in that case, would always pose an obstacle as it could be invoked by the Biden administration to preclude standing by states.

Anderson: What changes could Congress make to help address the problems of individuals waiting many years for family and employment-based green cards?

Mehta: Congress can make small-bore changes that can have a dramatic positive impact on the legal immigration system. For instance, Congress can clarify that family members should not be counted under the annual allocation. Once family members are not counted, or are counted as one unit, it would result in a dramatic reduction in the green card backlogs. Congress can also allow the filing of I-485 adjustment of status applications without regard to a current priority date. Then, there would be no need to advance the Dates of Filing as I am suggesting. Finally, Congress can also recapture all wasted visa numbers since 1990.

Anderson: Why do you think it’s important for policymakers to address the problem of long waits for green cards?

Mehta: The current legal immigration system is dysfunctional and is not befitting a great nation like the United States. As a result of the crushing backlogs, many skilled workers may not be able to get a green card in their lifetime, and their children will also age out and have to find their own way in the system. The United States is not the only game in town, and talented foreign workers will leave for other countries. Canada has tried to woo H-1B professionals by creating a work permit program for those who hold H-1B visas. It makes no sense for individuals educated at U.S. universities to be forced to leave and contribute their talents elsewhere in the world.


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