Update on immigrant visa spillover

I previously wrote a post about the prospect of spillover of unused FB immigrant visas due to Trump’s immigrant visa ban to the EB quota. A lot of the information in that post was not accurate but I now have a better understanding of the situation so I am writing this update.

In a recent webinar with IIUSA (read a summary here), Charlie Oppenheim estimated that in FY 2021 (starting Oct 1, 2020), there will be at least 200,000 EB green cards available. That is, at least 60,000 out of the 226,000 FB visas available in FY 2020 will not be issued before the end of FY 2020, therefore, they will be added to the FY 2021 EB quota. This is good news for backlogged EB applicants, although some users on Trackitt have been asserting that the spillover would be sufficient to move the EB2 India date ahead several years, and that doesn’t seem to be correct. (But I’ll address this issue later in this post.)

I previously wrote that I wasn’t sure whether any spillover was going to happen at all—aren’t there enough applicants already inside the US to consume the FB numbers that cannot be used by applicants abroad? There had been speculation that the State Department was cooking the books in order to avoid issuing visas that they are legally required to issue. However, in the IIUSA webinar, Charlie explained that even the EB numbers will likely not be used up this year because of limited USCIS processing capacity. This suggests to me that the State Department has not been cooking the books in order to favour EB applicants over FB applicants. It is just that there is not enough processing capacity to use up the visas in either category. (Some people still, after all this time, think that Trump likes skilled immigrants. At this point, I don’t think there’s anything I can say to convince them that they’re wrong.)

One might wonder whether the unused EB visas this fiscal year will spill over to FB. The answer is sort of, but no. I claimed in my previous post that any unused EB visas will spill over to FB, and if they are still not used in FB the next year then they will spill over to EB again, and so on until the visas are used. It was pointed out to me that this could not possibly be true, because if it were true then it would have been possible to issue many more EB visas than have been issued to date. I looked into the issue a bit more, and it turns out that Congress wrote the EB to FB spillover rule in a way that makes it nearly impossible for FB to actually get any extra visas. The reason for this is that the FB quota is calculated using the formula MAX(226000, 480000 – IR + SO). Here, SO stands for the number of unused EB visas from the previous fiscal year, and IR stands for the number of immediate relative visas used during the previous fiscal year. In recent years, IR has generally been approximately 500,000. Because of this, it’s unlikely for us to ever see a situation where 480,000 – IR + SO is greater than 226,000. So, if Trump finds some way to get away with wasting a large number of EB visas (up to ~200,000 or so), he can make those visas permanently disappear.

Will Trump waste lots of EB visas in FY 2021? Maybe, maybe not. If USCIS tries to do so without reasonable justification, then I believe they will be subject to a lawsuit (which they will lose). But if they are able to claim that they don’t have enough processing capacity to process the additional EB adjustments that people would like to file in FY 2021, then I guess they will be able to get away with not issuing the green cards. Whether they will have enough capacity depends on what they will do with FB applicants in FY 2021 (I will discuss this issue in the next paragraph).

As we know, in the June and July visa bulletins, the FB cutoff dates did not move at a greater-than-usual pace despite the large number of FB applicants inside the US. I now believe that I understand why—it is because by the time the immigrant visa ban was announced (end of April), there was no longer enough time left to give those visas to people inside the US before the end of the fiscal year. An I-485 usually takes more than 5 months to adjudicate, and due to the pandemic, USCIS has had less processing capacity than usual; therefore, even in May, if the FB cutoff dates had been significantly advanced, allowing many applicants in the US to file, then the vast majority of those additional I-485s filed in May would not be able to be approved before the end of the fiscal year. At that point, the unused FB numbers would spill over to EB, so those I-485s would no longer be able to be approved using the FY 2020 quota. However, in such cases, the I-485s remain pending, which would mean that the applicants would be able to receive EADs, and be eligible for continuances in immigration court, while waiting for an immigrant visa number to become available. Given Trump’s agenda about immigration, it is understandable that he did not want to allow this [1]. I am not sure whether it is actually legal for USCIS to refuse to accept I-485s in this manner. The statutory criterion for filing for adjustment is that an immigrant visa must be immediately available at the time of filing; if there are so many available visas for applicants inside the US, because they are not available for applicants outside the US, then what authority do DHS/DOS have to disallow those people from filing? Well, I guess the answer is that the opportunity to use the adjustment of status procedure is a discretionary benefit: it is an alternative to consular processing that DHS allows at its discretion. So, I guess maybe they can say that if they believe that allowing an applicant to file an I-485 would create a high risk of that I-485 to be pending for a long time due to retrogression, then they have discretion to not accept that filing in the first place despite the fact that visas appear available. I am not sure.

The immigrant visa ban was extended last week, so that it will now continue through December. This again puts the FB applicants who are inside the US in a bad situation—for the same reason why DOS/DHS didn’t advance the FB cutoff dates rapidly in the June and July bulletins, I guess they still won’t do so in August, because again, allowing a flood of filings in August would result in most of those filings still being pending at the end of December. If the immigrant visa ban were not extended beyond December, the result would be that the visas would become available to applicants outside the US again, which would mean that the extra filings from people inside the US would again be subject to retrogression (possibly for many years). So I think that’s why it’s not going to happen. I suppose that if Trump gets re-elected and he continues extending the EO in 6-month increments, then DOS/DHS may have cover to indefinitely continue refusing to advance the dates more rapidly (based on the theoretical prospect of the ban ending in 6 months), drastically reducing the total number of FB visas that are issued in the next few years. This is another devious strategy that I imagine Miller may have devised. I think Congress should try to prevent this by changing the spillover rules. One attempt to do so is found in the HEROES Act, which is pending before the Senate, but I have no idea whether it’s likely to pass.

One other issue that I want to discuss is the allocation of the spilled-over visas in the EB categories. I discussed this issue a bit in my previous post, but I took some time to look into the issue more closely. There are some rules in INA 202 (8 USC §1152) that govern how the extra visas should be allocated to backlogged countries. First, (a)(3) says that if, after limiting each country to 7% of the total number of FB and EB visas, there is not enough demand to use up all the preference visas, then the remaining visas can be issued beyond the 7% limitation. In other words, DOS can advance the cutoff dates for that country. If there are multiple backlogged countries with demand for visas that were unused by the rest of the world, then DOS should attempt to allocate the extra visas to those countries according to the following rule: if natives of that country receive X% of the FB visas and Y% of the EB visas, then they should try to make X and Y as close as possible. In a typical year that means 1.61 FB visas should be issued for every one EB visa, to natives of any particular country. If a backlogged country is above that ratio, then it should get extra EB visas while the extra FB visas should be allocated to other backlogged countries; if it is below the ratio, then it should get extra FB visas while the extra EB visas should be allocated to other backlogged countries. Since preference immigrants from Mexico and the Philippines are overwhelmingly family-based while preference immigrants from India and China are overwhelmingly employment-based, it follows that, contrary to popular belief, Mexico and the Philippines should actually receive priority over India and China for EB visas that are not used by the rest of the world.

Then there is paragraph (a)(5)(A): If, after limiting each country to 7% of the total number of FB and EB visas, there is not enough demand to use up all the visas in any of the five EB preference categories, then the remaining visas in that preference category can be issued beyond the 7% limitation. This basically reiterates that there should not be wasted visas in any single preference category as long as there is sufficient demand for those visas. Thus, even though Mexico and the Philippines should receive priority over India and China for unused EB visas, because of the fact that Mexico and the Philippines have no EB-1 or EB-2 backlog anyway, it follows that all the extra EB-1 and EB-2 visas will be issued to Indians and Chinese.

The most confusing paragraphs are (e)(3) and (a)(5)(B). (e)(3) is another balancing rule similar to (e)(1), but here we are balancing across EB preference levels rather than between FB and EB. That is, if (a)(5)(A) allows extra EB visas to be issued to natives of a particular country, then DOS should attempt to make R_1 … R_5 as close to each other as possible, where R_i is the fraction of the EB-i visas that are issued to natives of that particular country. However, it’s not clear to me exactly what single metric is supposed to be optimized here by the allocation. (a)(5)(B) is some sort of limitation on (e)(3) that I am totally unable to understand.

So, after looking at these paragraphs, I’ve concluded that I have absolutely no idea how to answer the following questions: when Rest of World does not use up all the EB1 and EB2 visas, how many EB1 visas go to China and how many go to India, and how many EB2 visas go to China and how many go to India? People seem to assume that whatever EB2 visas are not used by Rest of World should just all go to Indians since they have the earliest priority dates, and that whatever EB1 visas are not used by Rest of World should similarly go to Indians until the Indian cutoff date catches up with the Chinese cutoff date at which point the two should be advanced in lockstep. However, I don’t think this is what INA 202 requires, but I have no idea what INA 202 does require.

All I know is that in FY 2021, backlogged EB applicants will receive a massive spillover; 2/7 of the the spilled-over visas will be distributed to EB1, 2/7 to EB2, and 2/7 to EB3; and Rest of World will almost certainly not use up all the EB1 and EB2 visas, just as they have not done so for the past few years, and that means extra visas for India and China, according to some distribution that I cannot predict. Maybe if I have time, I’ll try to file a Freedom of Information request with the State Department to get a hold of any internal documents they have that explain how this works. But if it’s all inside Charlie’s head, then there won’t be any documents to release.

[1] Well, I guess it was probably Miller who made the decision. Actually, I have to wonder whether Miller was responsible for the timing of the ban. If it had been announced later, there would not be as many visas left to waste in the year. If it had been announced earlier, there would be more time to process adjustments, so there would be less of an excuse to waste visas. Miller probably knows more about US immigration law than I do, so if I could see how the end of April was a particularly devious time to issue the ban, he probably could have seen that too. But I digress.