Visa Bulletin Snafu Makes a Mess of Legal Immigration

Biden administration creates ‘barrier’ by miscalculating visa priority dates

By Robert Law on November 4, 2021

In its haste to quickly approve lawful permanent resident (LPR or "green card") status, the Biden administration miscalculated immigrant visa availability for certain employment-based aliens. This bureaucratic mishap, known as visa retrogression, means the government told these aliens they could receive a green card this year only to revoke that promise. Beyond the obvious frustration and disappointment the aliens feel, visa retrogression introduces added layers of inefficiencies, wasted U.S. Citizenship and Immigration Services (USCIS) adjudicator resources, created new work streams, and added costs that collectively make a mess of the legal immigration system.

The immigrant visa process for an alien to obtain LPR status is governed by sections 201, 202, and 203 of the Immigration and Nationality Act (INA). Section 201 establishes the annual worldwide cap of immigration divided into three categories: family-based, employment-based, and “diversity” lottery. Generally, this affords 226,000 family-based; 140,000 employment-based; and 55,000 lottery-based aliens (minus any aliens receiving amnesty under the Nicaraguan Adjustment and Central American Relief Act (NACARA)), including derivatives, the ability to obtain a green card each year. Section 201 also exempts from numerical limit the “immediate relatives” of U.S. citizens (spouses, parents, and minor children), resulting in roughly 500,000 additional aliens becoming LPRs each year. Section 203 directs the subdivision of the family-based and employment-based caps into preference categories. Section 202 establishes per-country caps to promote diversity and assimilation within the immigrant pool.

The Department of State manages the Visa Bulletin, in consultation with USCIS, which is supposed to establish when an alien’s green card is available based on the restrictions imposed by sections 201 through 203 of the INA. Large sending countries like mainland China, India, Mexico, and the Philippines have their own entries in the Visa Bulletin (as do the Northern Triangle countries and Vietnam for employment-based green cards) and the rest of the world is grouped together in a column entry noted: “All Chargeability Areas Except Those Listed”. Aliens with a priority date before the date listed on the family-based or employment-based charts (final action date) are able to obtain their green card. If there is not a wait, the chart entry is “C”, for current. ("U" means unauthorized, i.e., numbers are not authorized for issuance.)

As mentioned above, the annual worldwide immigration levels are usually 226,000 family-based (excluding immediate relatives of U.S. citizens) and 140,000 employment-based. However, if either number is not reached in a given fiscal year, the INA directs that the shortage is added to the other category for the next fiscal year. For example, if 200,000 family-based green cards are issued in a fiscal year, the employment-based level for the following fiscal year increases by 26,000. This is why recent efforts by advocates of unlimited immigration to “recapture unused visas” are really just an accounting scam.

Such shortfalls occurred in both fiscal years 2020 and 2021 due to Covid-19 travel restrictions, resulting in higher levels of family-based and employment-based green cards being potentially available in fiscal year 2022, which began October 1.

Somewhat quietly in late October, the State Department published the November Visa Bulletin with the following priority dates:

Employment-Based All Chargeability  Areas Except Those Listed CHINA-Mainland-Born EL SALVADOR, GUATEMALA, HONDURAS INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 15-Nov-18 C 1-Dec-11 C C
3rd C 22-Mar-18 C 15-Jan-12 C C
Other Workers C 1-Mar-10 C 15-Jan-12 C C
4th C C 15-Mar-19 C 1-Apr-20 C
Certain Religious Workers C C 15-Mar-19 C 1-Apr-20 C
5th Non-Regional Center (C5 and T5) C 22-Nov-15 C C C C
5th Regional Ctr. (I5 and R5) U U U U U U

By comparison, the month before the October Visa Bulletin had set the following priority dates:

Employment-Based All Chargeability  Areas Except Those Listed CHINA-Mainland-Born EL SALVADOR, GUATEMALA, HONDURAS INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 1-Jul-18 C 1-Sep-11 C C
3rd C 8-Jan-19 C 1-Jan-14 C C
Other Workers C 1-Feb-10 C 1-Jan-14 C C
4th C C 15-Mar-19 C 1-Mar-20 C
Certain Religious Workers U U U U U U
5th Non-Regional Center (C5 and T5) C 22-Nov-15 C C C C
5th Regional Ctr. (I5 and R5) U U U U U U

As you can see, the State Department advanced the priority dates for EB-2 Chinese and Indians by a few months but rolled back (retrogressed) the Chinese EB-3 date by almost a year while Indian EB-3 rolled back nearly two years. Buried in the November Visa Bulletin is a surprisingly brief explanation for the government’s mishap:

It has been necessary to retrogress both the China-mainland born and India Employment Third preference final action dates. This is a direct result of extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases.

The impact of this mistake, mainly on USCIS operations, cannot be overstated. First, all of the EB-3 adjustment of status applications that were filed in October 2021 but have since been returned to the waitlist due to the visa retrogression were able to pay the current fee for a service that will now be adjudicated sometime in the future when the cost of the Form I-485 has increased. USCIS continues to struggle financially because the Biden administration refused to implement the fee schedule developed during the Trump administration that actually would have fully recovered the cost of adjudications. Now, thousands of aliens will eventually get their green cards at a discounted price. Beyond that, USCIS now has to incur additional storage and transportation costs as these paper files are “returned to the shelf” until the priority dates advance. Lastly, those who filed for adjustment of status but did not get a green card approved before the retrogression are now eligible for a new employment authorization document (EAD) on that basis, which is free to the applicant. That means more work for USCIS adjudicators and no added revenue coming in to help the agency stay financially afloat.

The USCIS policy office I ran was the primary liaison with the State Department in establishing the priority dates in the Visa Bulletin each month. I repeatedly stressed the importance of avoiding visa retrogression because it is the equivalent of a false promise from the government. Unsurprisingly, some of the adversely affected aliens have sued for the green cards they feel entitled to, further diverting USCIS resources to deal with the litigation.

The Biden administration’s desire to appease certain special interest groups with overly aggressive priority dates in the October Visa Bulletin has ironically created a real barrier to immigration benefits. Undoubtedly, the administration is hoping to save face through the immigration provisions in the reconciliation bill that would allow the alien workers hit by retrogression to jump the green card line.