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Monthly Visa Bulletin – Explaining the (Nearly) Unexplainable

27 Oct

The U.S. immigration system is complex.  The complexity is due in part to an outdated immigrant quota system that was already a few years old by the time Neil Armstrong set foot on the moon in 1969.

This quota system is broken down into quotas for family-based and employment-based immigration that are further broken down by immigrant preference category.  Finally, annual immigration from any one country is limited to 7% of the total annual quota for the fiscal year.

As with any quota system, queues form whenever the demand exceeds the quota.  An immigrant’s place in the queue is determined by his or her “priority date.”  For employment-based applicants, the priority date is the date an employer filed a labor certification application or immigrant petition starting the permanent residency process.  For family-based applicants, the priority date is the date a family member filed the required immigrant preference petition.

Each month the U.S. Department of State publishes the Monthly Visa Bulletin to report the “cut-off dates” for each preference category, broken down by country of birth.  When the applicant’s priority date is earlier than the applicable cut-off date, the applicant’s priority date is said to be “current,” and the applicant is eligible to apply and be approved for an immigrant visa at a US. Embassy or Consulate abroad or to file an Application to Adjust Status (“green card” application) with U.S. Citizenship & Immigration Services (CIS) in the United States.  The priority date must be current both at the time of filing and at the time of approval.

Because of the per-country limits, applicants from countries with high rates of immigration to the United States might wait many years for U.S. lawful permanent residency.

Making matters worse, the monthly cut-off dates do not progress at a regular pace, and they often retrogress.  An applicant might file an application when his priority date is current, but might have to wait several years for approval if visa availability retrogresses before the application is approved.

To mitigate the harshness of long waits under the quota system, Congress passed laws that allow for additional extensions beyond the normal limit on H-1B eligibility and greater flexibility to change from one employer to another once an I-485 Application to Adjust Status has been filed for more than 180 days.   Applicants also become eligible for benefits when they are able to file their “green card” applications, including Employment Authorization Document (EAD) cards for the applicant and dependent family members and increased flexibility to change employers and jobs without having to restart the permanent residency process.  As a result, having an I-485 application on file is extremely beneficial, even if future visa retrogression means it may not be approved for years.

In order to allow applicants to obtain these benefits earlier, the Department of State modified the Monthly Visa Bulletin to include “filing cut-off dates,” which are earlier than the “final action cut-off dates.”  After the Monthly Visa Bulletin is published, the CIS will confirm whether applicants may file their “green card” applications based on the “filing cut-off dates” or must wait for the “final action cut-off dates.”

After one year under this modified bulletin format, it appears that the Department of State will publish at the beginning of the fiscal year, in the October Visa Bulletin, a “filing cut-off date” that roughly corresponds to what the “final action cut-off date” is expected to be at the end of the fiscal year.  It further appears that the CIS, at least for now, will allow applicants to file their applications based on this “filing cut-off date.”  If we were to infer a policy from these current government actions, it would seem that the U.S. Government is willing to accept applications at the beginning of the fiscal year from applicants that may be approved under the quota by the end of the fiscal year.