In a previous post I discussed how a large number of family-based preference immigrant visas will not be used up by the end of the fiscal year and the unused visas will be added to the employment-based quota in the new fiscal year starting in October 2020 (next month), resulting in at least 200,000 employment-based green cards being available. I’m now convinced, however, that unless Trump loses the election, the vast majority of the extra green cards are not likely to be issued. And even if Biden takes over in January, he will likely have too much on his plate to prevent the visa wastage that Trump will set the system up for.
There are two specific mechanisms by which this visa wastage will occur. The first is the use of processing delays. USCIS announced that, while they had averted the furlough of 70% of their employees that was planned for August 30, there will be increased wait times across the board. Many observers don’t believe that USCIS had a genuine funding crisis in the first place—they manufactured it as cover for delaying the issuance of immigration benefits in general. And there have already been significant delays, as Charlie Oppenheim had indicated in a previous check-in that the EB quota would most likely not be hit in FY 2020. In other words, USCIS will not even issue an extra 16,253 EB green cards that are available in FY 2020 (total quota 156,253), so it seems foolish to expect them to use up the 60,000+ extra green cards that will be available in FY 2021. I’m not even sure if they’re going to issue the base number of 140,000 EB green cards in FY 2021.
The processing delays excuse is almost bulletproof. It may be that a House committee will eventually call Cuccinelli or Edlow to testify about the processing delays, but this is not likely to yield any relief as he can just reiterate the existing talking points regarding the delays and answer
I don’t know regarding any specifics. The inquiry will end there; the House may be able to subpoena documents, but any real oversight can only be accomplished by forcing USCIS to generate detailed reports, which can only be done through legislation, not through a subpoena; and that will not happen as long as the Senate remains under Republican control. At risk of stating the obvious, the House also can’t pass any legislation by itself to force USCIS to speed up adjudications. One also shouldn’t pin any hopes on the other avenue for relief—namely, the courts—as the whole judicial process may take too long to and fail to prevent the visas from going wasted at the end of September 2021. This is particularly the case if the Supreme Court gets involved. So we find ourselves in a situation where there is ample motivation for the Trump administration to cause delays (for example, a recent Breitbart article encouraged him to do so in order to supposedly protect American workers) and little that can be done to stop them.
The other visa wastage mechanism is more obscure. It revolves around the question:
how does the spillover actually get calculated and allocated (practically speaking)? The answer is as follows. Early in the fiscal year, the State Department estimates the quota for that fiscal year (in other words, they estimate the number of visas that have spilled over from the previous year, and add that to the base quota). In FY 2020, these estimates were published at some point in late October 2019 or early November (I don’t know the exact date). However, the September 2020 visa bulletin contains the following note:
The State Department is required to make the determination of the worldwide numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an annual basis. These calculations are based in part on data provided by U.S. Citizen and Immigration Services (USCIS) regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year. Without this information, it is impossible to make an official determination of the annual limits. To avoid delays in processing while waiting for the USCIS data, the Visa Office (VO) bases allocations on the minimum annual limits outlined in Section 201 of the INA. On July 31st, USCIS provided the required data to VO.
In other words, it’s not until the final quarter of the fiscal year that USCIS transmits to DOS the data required to finalize the computation of the quotas. Until DOS receives that report from USCIS, they will simply assume that only the base quota (140,000 EB visas) will be available in that year, and move the cutoff dates accordingly. This implies that only at the very end of the year is USCIS able to approve more applicants using the spillover visas, based on the cutoff date advancements that were made possible by the spillover.
One might wonder why USCIS takes so long to provide the data. Is that also Trump’s fault? Interestingly, the answer is
probably not. If you browse older visa bulletins from when Obama was in office, you see something similar—USCIS doesn’t send the report until July. This works fine in a typical year, when the amount of spillover visas is low. For example, the Sep 2016 visa bulletin gives the finalized EB quota for FY 2016 as 140,338, meaning that USCIS only then had to process 338 more EB adjustments in the last 2 months of the year than they would otherwise have had to. But in FY 2021, it’s simply not possible for USCIS to approve 60,000 extra applicants in the last 2 months (considering that in a normal year, only 35,000 applicants would be approved per quarter) regardless of who occupies the White House.
USCIS and DOS can work together to prevent the wastage by changing their procedures to accommodate the unprecedented amount of spillover in FY 2021. All they have to do is estimate very conservatively at the beginning of the fiscal year the number of extra EB visas; DOS can move the dates by taking into account those extra visas, and USCIS can approve them, and then in the last two months, the final number will be known and remaining visas can be issued (perhaps a small number more or less than was estimated to be available for those months). However, under the Trump administration, this isn’t likely to happen. It’s simply too easy for USCIS and DOS to just do what they’ve always done—knowing full well that it will lead to wastage—and pretend that the outcome couldn’t have been averted. Actively changing their procedures, even just a bit, in order to satisfy the Congressional mandate to use up all the visas would be seen as a massive
giveaway to job-stealers like me.
As I mentioned before, I think that even if Biden takes over in January, it’s not likely that he’ll immediately take the necessary actions to prevent the visa wastage from unfolding. This doesn’t mean nothing will change if Democrats are elected; if Democrats can win the Senate as well as the Presidency, they could potentially increase both the EB and FB quotas for future years (and eliminate per-country caps). Trump staying in power, on the other hand, is unlikely (in my opinion) to be beneficial for EB immigrants the way that people sometimes think. Of course, I’m happy to be proven wrong—if lots of EB green cards get approved next year, it’ll be great to see them not go to waste and I’ll admit that some immigrants did benefit from Trump from Trump after all (while maintaining that it should not have been legal for Trump to use 212(f) to enact this travel ban in the first place).