The Visa Bulletin Raises More Questions than it Answers About Permanent Residency Visas

If you want to get into the true intricacies of immigration law, then welcome to the visa bulletin. 

The demand for permanent residence—a green card—exceeds the supply of cards available every year, so everybody who wants one has to get in line. Some of those lines are so short as to be essentially non-existent, like those for foreign nationals of extraordinary ability. Some of the lines are very long, especially in the family-based categories where the wait is longer than 20 years. Each category has a different allotment of spots and a different formula for capturing unused spots from other categories. On top of that, each country of origin has a cap, so only so many people from a given country can get a green card in a year. If you want to get into the weeds about that, see our prior postson the long waiting lines for individuals migrating from India and China.

 Every month, the Department of State runs a complex algorithm weighing supply and demand and projecting whose turn it will finally be to move to the front of the permanent residency line each month. Immigration nerds like us anxiously check the bulletin when it comes out mid-month with the projections for the next month, and we were surprised that October’s didn’t arrive until today. Why the delay? Because 2020. Seriously. 

The October 2020 bulletin marks the beginning of the fiscal year, which usually means the release of new supply and a redistribution of unused supply.  Normal October bulletins show a significant forward movement in most categories, and 2020 should have shown a huge movement because for most of 2020, US embassies were not processing immigrant visas at all.  For most of 2020, USCIS offices have not been operating or have been operating at a limited capacity, so that should mean a huge leap forward in dates. 

We did see a lot of movement in with the October 2020 bulletin, but, honestly, not as big of a leap as we expected for India, China, and special immigrant juvenile cases from certain countries. The notes to the bulletin, which often contain great information about the coming months, give some small insight.  For the employment categories, the notes all say to expect “rapid forward movement.”

Why aren’t there more available slots? We have theories, starting with how problematic it might look to have a large increase in filings right before an election when the incumbent has an anti-immigration platform. Also, USCIS plans to implement a very significant fee hike on October 3, and large leaps in the number of slots available for immigration from India and China now could deprive USCIS of larger fees laters.    

 There is a saying that is something like Don’t confuse bureaucracy for malice, so we’re reluctant to be too skeptical. Either or both could be the cause, but the notes to the bulletin specifically mention “other variables,” which make it clear that it is not just the algorithm that drives this bulletin. Maybe some of those variables are USCIS staffing or COVID and the unpredictability of when embassies will return to full processing. To what extent is this bureaucracy versus math versus policy?  You can draw your own conclusions. 

Any foreign national from the large demand countries—India, China, Mexico, and The Philippines—should be checking in on the visa bulletin regularly. This may be the time to get something filed or the time (finally) to push USCIS to act via a Writ of Mandamus. This may also be the time to stop procrastinating and try your own merit-based petition and present yourself as an alien of extraordinary ability. Like so many other things in 2020, the visa bulletin will likely be volatile and unpredictable through December.

 

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