The Anatomy of a Mirage, Part III: “The Autopsy”

The Anatomy of a Mirage, Part III: “The Autopsy”

By Mark G. Murov


So, what do we know about the July Visa Bulletins fiasco, now that the dust has finally settled? I’ll try to keep it simple, recapping the events without full background analysis.

First: in many recent years, USCIS has allowed immigrant visa “numbers” (slots) to “die on the vine” by failing to do its job of concluding enough employment-based green card Applications for Adjustment of Status (Forms I-485) during the current Fiscal Year. This failure has been a contributing factor in the creation of an ongoing backlog of applicants, prejudicing the legal rights of substantively qualified immigrants to timely obtain their LPR status.

Second: in May and June, 2007, the U.S. Department of State (DOS) followed its own historical procedures (and sound practices generally) by advancing the visa cutoff dates to reflect the under-consumption of Fiscal Year 2007 visa numbers by USCIS. There was nothing unprecedented or improper in this forward spike; it was a legitimate and admirable attempt to force USCIS to pick up the pace of its I-485 adjudications, so that numbers would not die on the vine again this year. The result was that the EB-1, EB-2 and EB-3 cutoff dates were scheduled to go “current” for July. We know what happened next: USCIS somehow claimed to have “approved” enough cases in a two-week period to use all the remaining Fiscal Year 2007 numbers, and so advised DOS.

Third: DOS next issued a “Revised” Visa Bulletin for July, 2007, showing that no visa numbers were available for any EB categories. USCIS was, for the moment, off the hook, and could then refuse to accept the massive number of filings which had already occurred or which would occur during July. The Revised Bulletin also would have earned the USCIS vast revenues due to the filing fee hike scheduled for July 30.

Fourth: Due to public outcry, threats of litigation and obvious questions about how USCIS could possibly have consumed all those numbers between June 14 and July 1 (including its admission that some numbers were requested on July 1 and July 2), the government announced a settlement on July 17 whereby DOS would issue a third visa Bulletin, and filers would have until August 17 to file based on the original July Visa Bulletin, and at the old filing fees.

Fifth (Cracking the Code, unequivocally): In mid-August, the September Visa Bulletin was released, showing fixed cutoff dates in some EB categories. How could all of the numbers have been consumed on July 2, followed in Mid-August by the establishment of cutoff dates rather than showing 100% “unavailable” designations for September? Obviously, the numbers were not consumed, or at least not properly and actually consumed, as opposed to having allegedly been “requested” by USCIS in late June and early July.

Accountability? We’ll see.

The workings of the preference system and the allocation of visa numbers can be complicated, sometimes inscrutable. But what happened in late June is not complicated; it is in fact quite transparent, and an embarrassment.

Who should be accountable for this fiasco? The worst I can say about the DOS is that it was too quick to accept the USCIS's assertion in releasing the Revised Bulletin on July 2. But who at USCIS engaged in misconduct? And what’s happening now? Is “oops, I guess we got caught” the last word on this event? Don’t the DHS and the Department of Justice have a duty to investigate? I, for one, would like to know if the persons who attempted this fraud are still in place and running the agency.