Administration Uses Sleight of Hand to Change Visa Rules

By David North on October 5, 2015

The Obama administration has used yet another sleight-of-hand maneuver in the visa process to get aliens here more quickly and to expand the legal alien workforce substantially.

The latest legally dubious executive action allows a large number of aliens who have been sponsored for a green card, but who are still years away from obtaining it due to the numerical limits of the law, to instead receive work permits and travel documents. These individuals will have permission to work and travel in the United States — de facto permanent residency — even before their applications have been reviewed, and in defiance of the numerical limits and orderly process set by Congress.

To say that the basic action is complex is an understatement. The whole picture is further complicated by the fact that the new process was announced in one form one day and curtailed shortly thereafter, to the discomfort of some aliens (and their lawyers) who had sought to apply under the first-announced rule. (Because of the correction, some immigration lawyers — never content with a major victory — are suing the government for still looser rules.)

The new rule is confined to aliens who have successfully been sponsored for permanent resident alien (PRA) status, and are waiting for the opportunity to submit their final applications. The final application stage is significant. It is the point at which an application is scrutinized for eligibility, including criminal and medical records, financial support, fraud, and other critical factors. The final application is neither a technicality nor a formality, as supporters of this action would have us believe; it is the key moment in the process, the equivalent to the road test in a driver's license application. There are a very large number of people awaiting the final application stage, many of whom are already in the United States.

The new rule deals with the numerical limits that control most legal immigration. It has the biggest impact on aliens from China, India, Mexico, and the Philippines, many of whom face years on the waiting list before they can complete their applications. The law also says that, with certain exceptions, no more than 7 percent of immigrants in any year may be from a single nation, and these four routinely have more applicants than available slots. They are referred to as "oversubscribed".

(An aside: Ours is, we think, the only nation in the world with waiting lines in the immigration process. Most other nations say "yes" or "no" to applicants; those approved can come to those nations immediately and those denied simply drop out of the system.)

Routinely in these over-subscribed migrant streams the State Department announces that it will only process visas, and the Department of Homeland Security will only process adjustments of status, for those aliens who applied before a certain cut-off date, with that date varying from immigrant class to immigrant class.

The government's new term is "final action dates". These are published by the Department of State every month in the Visa Bulletin and are estimates based on three variables:

  1. The number of aliens, world-wide, who have applied for a specific category of visa;

  2. The number of aliens from the four backlogged nations who have filed for each specific category of visa (such as a sibling of an adult U.S. citizen, or a given type of alien worker); and

  3. The expected "take-up" or visa utilization rate of each subclass of aliens within the multi-dimensional system described above.

The "take-up" calculations are significant because not everyone who filed a petition years ago is still interested in coming to the United States or, indeed, still alive. For example, the September 2015 Visa Bulletin, the last one issued before the controversy, had a final action date for siblings from the Philippines of March 1, 1992, which was 24.5 years ago. Many who applied at that time are no longer with us.

Aliens who filed petitions before the "final action date" could, if they were in this country, apply for adjustment of status and were granted substantial benefits while waiting for their green cards, including the permission to work, change jobs, and cross our borders legally. The same final action date applied to aliens outside the United States.

It is important to note that the law does not permit these benefits to be given out until someone's green card or immigrant visa is "immediately available" (see INA section 245(a)(3)). The Obama administration has decided that "immediately available" means the same as "available in a few years, or whatever we feel like".

Who Benefits? The most vocal defenders of this action are Indian and Chinese citizens who were admitted in large numbers as temporary guestworkers on H-1B visas, and who have been given extensions after the expiration of their temporary visas because they are applying for a green card, but who must remain with their sponsoring employer until the green card is approved. Although admitted as temporary workers, most of these individuals wanted to stay permanently — and the number green cards issued each year is much smaller than the number of H-1Bs (plus family members, which grows over time), leading to a long backlog. Further, many of these guestworkers complain vociferously that they are underpaid and exploited by their employers who sponsored them as H-1Bs, so they should be allowed to compete (with Americans and legal immigrants) for other jobs in the economy. And they believe that their spouses and children should also have the right to work here, even before the green card is approved.

The Old New Rule. Into this nightmare of complexities, the administration decided to toss in an additional one. On September 9 it created an additional set of dates, usually more recent — sometimes years more recent — than the "final action date". The new date is called the "date for filing applications" (DFFA) and aliens on the waiting lists — maybe hundreds of thousands of them — who were the beneficiaries of approved petitions stamped before that date are eligible to file for adjustment of status. This was done in the State Department's October Visa Bulletin, which is routinely published ahead of time.

To illustrate the complexity of all this, the October Visa Bulletin carries the details of these two sets of dates in four tables that have 150 cells in them.

The new set of rules will surely produce three demographic results:

  1. It will give a large number of aliens now in the United States the right to work and to cross our borders as applicants for adjustment of status. These new rights will not only apply to the principal alien (the one who will ultimately secure the visa), but also to his or her spouse and children as well. The new system will, in effect, override the numerical caps on immigrants that help moderate immigration levels and that have been part of our law for close to a century.

  2. The prospect of being an applicant for adjustment of status, with all its secondary benefits, will encourage many aliens who have filed petitions to come to this country now, rather than waiting in their homelands.

  3. Many more green card applicants will already be living here at the time that their application is adjudicated. In the unlikely event they are denied for fraud, criminal, security, or public health reasons, they will have to be tracked down and deported — an unlikely event under any administration, and much more costly than rejecting them when they are still in their home countries.

The beauty of this scheme, to the administration's way of thinking, is that the numerical caps are apparently not being violated, but the number of aliens with the right to work will be expanded substantially. Further, the administration need not ask for congressional approval for what has already been done. For an even-handed description of these developments see this article in National Law Review.

The New New Rule. On September 25, apparently after thinking about what it had done, the administration revised the October Visa Bulletin to show a new set of Final Action Dates and Dates for Filing Applications that were less generous than the earlier edition of the same publication. In the interim, some aliens who had spent time and money and underwent medical examinations based on the earlier version of the Bulletin, found that they were not in fact eligible yet for the new benefits; they and their lawyers were upset.

The aliens caught in this mess have a right to be disappointed. For example, potential Third Preference Employment-Based migrants from the Philippines were told by the September Visa Bulletin that their date for filing would be December 22, 2004; the first version of the October Bulletin said no, the date was to be January 1, 2015, and then the second version of the October Bulletin showed that the correct date is January 1, 2010. This is a bureaucratic error of monumental proportions; it is like being a passenger on a ship headed for glamorous San Francisco, only to find that the captain, because of a huge navigation error, was docking your ship amidst the factories at Long Beach.

The Third Preference Filipinos while now a net of six years closer to legal status in this country than they were in September, are more likely to notice the backwards movement from 2015 to 2010.

Parole. These arrangements are similar to those made earlier by the administration for some Central American and some Haitian migrants. Rather than going through the normal processes, these migrants are paroled into the country and given employment authorization documents and travel permits as if they were PRAs. For more on this program, see this testimony by Jessica Vaughan, the CIS Director of Policy Studies.

David North
Jessica Vaughan