There has been some recent speculation that 52,000 visas could spill over from the family-based quota to the employment-based quota due to Trump’s recent executive order to ban immigrants from entering the US for 60 days (which many people believe will be extended, perhaps until the election or even longer). There have been many arguments about the mechanics of spillover on Trackitt, an immigration forum largely populated by Indian people, who face very long backlogs for employment-based immigrant visas. However, the law is quite clear, so much of the controversy seems unnecessary.
Where did the 52,000 figure come from?
The figure of 52,000 comes from a tweet by the Migration Policy Institute that 26,000 green cards would be blocked by the EO during each month it remains in effect, which means 52,000 over a period of 60 days. The MPI doesn’t explain their methodology, but I think we can draw some inferences.
The MPI seems to have gotten the 26,000 figure by taking the total of 315,403 and dividing by 12. This total includes family-based, employment-based, and diversity visas. So we can immediately conclude that MPI did not estimate 52,000 family-based immigrants would be blocked. That was, rather, their total estimate across all three categories. Rather, their estimate is that 5,565 immediate relative immigrants and 15,409 family-based preference immigrants would be blocked per month.
Second, the MPI’s figures look very similar to the official State Department figures for immigrant visas issued abroad in 2019. For example, the MPI’s estimate of 3,432 for EB-2 is very close to the State Department figure of 3,497 EB-2 immigrant visas issued in 2019, which is substantially less than the actual annual EB-2 quota of roughly 40,000. From this we can infer that the MPI numbers mean something like
we estimate that 52,000 people who would have received immigrant visas over the next 60 days, now will not as a result of the EO.
This does not mean that 52,000 visas will go unused! Since the EO does not block green cards for applicants who are already in the US, there is a possibility that some or all of those 52,000 visas can be issued to applicants in the US, instead of the people outside the US who would have received them if not for the EO. (Note: An applicant in the US who receives a green card consumes an immigrant visa, but is not actually physically issued a visa.) The MPI figures simply do not answer the question of whether any immigrant visas will be unused this year.
Will any family-based visas actually go unused this year?
The May 2020 visa bulletin was released on April 24, several days later than expected, since it could not be cleared for release until Trump’s executive order had been finalized. However, astute readers noticed that the date
April 6, 2020 was printed at the bottom of the bulletin, suggesting that the cutoff dates had already been calculated by then. Indeed, the movement in cutoff dates was, perhaps, no more than would have been expected without the EO. For example, the F3 and F4 Mexico cutoff dates, which advanced 1 month in the April bulletin, again advanced 1 month in the May bulletin.
Now, in order to use up all the family-based visas for this fiscal year, the State Department must move the cutoff dates far enough ahead so that enough people are able to apply for their visas. Since most family-based applicants live outside the US, and many of them can no longer receive a visa due to the EO, it is necessary to move the cutoff dates more quickly so the visas can instead be used by applicants inside the US. The fact that this does not seem to have happened has made some immigration lawyers concerned. However, until the June 2020 visa bulletin is released, it’s too early to panic—again, the May 2020 cutoff dates may simply not have taken into account the EO yet.
Most family-based immigrants on the waiting list are outside the US. This is because most of them cannot easily obtain a long-term visa, such as a student visa or work visa, that would enable them to live in the US while they wait for an immigrant visa to become available. This fact has led some to speculate whether there are just not enough of them inside the US to use up the rest of the family-based immigration quota for the current fiscal year. For example, if, hypothetically speaking (I am just pulling numbers out of thin air here), 120,000 of the 226,000 family-based immigrant visas this year had already been issued, and there were 85,000 remaining applicants waiting inside the US, then at least 21,000 visas would go unused. However, I don’t think that this is the case.
Greg Siskind, an immigration lawyer, has made the following comment that most casual readers won’t understand:
They could have moved all the Mexican categories to May 2001 (they’re backed up to the 90s except F2A) so that the 245i folks in the US could file adjustments to fill in the gap from IV processing abroad. Siskind is referring to INA 245(i), which, in short, allows certain people with priority dates earlier than May 2001 to obtain a green card even if they are currently residing in the US without authorization. In other words, if the State Department is having a hard time issuing all the remaining family-based visas this year, they should advance the Mexico cutoff dates, possibly all the way up to May 2001, to give more people a chance to apply, as there is probably a substantial population of Mexicans inside the US who may be eligible for green cards under INA 245(i). The number of such individuals is impossible to determine accurately, so the State Department cannot in good faith say
well, we tried to issue all the visas available, but we couldn’t do so because of the EO unless they’ve given all the
245(i) folks an opportunity to apply.
Some immigration lawyers think that the administration is going to try to waste family-based visas on purpose as part of their agenda to curtail immigration. If the June 2020 visa bulletin rolls around and it really does seem that they are not making an effort to advance the dates, then it is likely that immigrant advocate groups will have some members of Congress ask the State Department why they are not on track to issue all the visas to eligible applicants—and there may be legal challenges if the answer is not satisfactory. So I believe that while some family-based visas may go unused this year, the chances of the number being significantly affected by the EO are slim (i.e., there is a slim chance that any judicial relief gets held up until after the end of the fiscal year). (We should note that there was already some spillover into the employment-based quota this year, indicating that not all of last year’s family-based visas were used. Nobody seems to know exactly why, so the same might happen this year, EO or no EO.)
If some visas are unused, would they actually spill over?
According to INA 201(d)(1)(B), if the full quota of family-based visas is not used up in this fiscal year, then the unused numbers are added to next year’s employment-based immigration quota. While Trump can suspend issuance of visas pursuant to INA 212(f), he is without power to block the spillover provisions. Even if Trump takes further actions to block issuance of employment-based green cards next year, in an effort to prevent immigrants from benefitting from the spillover, he cannot actually waste any green cards. If the spilled-over numbers, added to the employment-based quota next year, are not used, they will just spill over as family-based quota the following year, and so on indefinitely back and forth between the two categories until either Trump is out of office, or Congress changes the law.
Unused diversity visa numbers, however, do not spill over. They are neither added to next year’s diversity visa quota, or to any other category.
If visas spill over to employment-based immigrants, how will they be allocated?
INA 201(d)(1)(B) prescribes the worldwide level of employment-based immigrants. INA 203(b) prescribes that the worldwide level shall be allocated as follows: 2/7 to EB-1, 2/7 to EB-2, 2/7 to EB-3, 1/14 to EB-4, and 1/14 to EB-5. Some people have speculated that the spillover visas will all go to the most backlogged people, namely Indian-born EB-2 applicants; this is false. Some have speculated that the spillover visas will all go to EB-1; this is also false. The EB-2 and EB-3 quotas will increase proportionally. This is very clear from the statute; there is no ambiguity. Some have speculated that none of the spillover numbers can be allocated to Indians because the number of available visas for natives of any single country is fixed. This is also false, since the 7% limitation applies to the total worldwide level of preference-based immigrants according to INA 202(a)(2), which, as previously mentioned, is not a fixed number but, according to INA 201, depends on how many visas spilled over from the previous year.
Thus, if any numbers spill over, then the State Department will allocate them the same way they would have allocated the usual quota—just with all the numbers scaled up proportionally. Because EB-1 Rest of World is unlikely to use up all the numbers (whether there is spillover or no spillover), that means that the spilled-over visas allocated to EB-1 (namely 2/7 of the total) will mostly go to the most backlogged (i.e., Indian-born applicants) due to INA 202(a)(5). Another 2/7 would spill over to EB-2, which would also be allocated in the usual way, but if Rest of World does not use up all the EB-2 numbers, then any additional numbers would again be allocated to India. In EB-3, demand from Rest of World exceeds supply, so if current patterns continue, then EB-3 China and EB-3 India would likely only receive 7% of any spilled-over numbers.
It’s not likely that there will be any unused family-based visas to spill over. But if there are any unused family-based visas, they will spill over to employment-based immigrants and Trump cannot prevent that. If such spillover does occur, then it will be distributed evenly to EB-1, EB-2, and EB-3, and within each preference level, Rest of World will still be entitled to 86% of the spilled-over visas, which will only go to India if there are not enough Rest of World applicants. Thus, spillover could significantly benefit EB-1 India and EB- 3 Rest of World, whereas EB-3 India and all three Chinese categories would likely receive little benefit (though EB-5 is another story). The EB-2 Rest of World and EB-2 India situations are harder to predict (although EB-2 India is so backlogged that even if it does end up receiving additional unused numbers from EB-2 Rest of World, the movement will still not be that much).