07/18/2007: Reinstatement of Original July Visa Bulletin and Uncertain Impact on Pre-July "Tagged" EB-485 Applications and Processing Time of I-485 Applications in the Future
As we explained it at the beginning of the visa fiasco, when it comes to the visa number requirement in the green card proceeding, there are two different steps which should be clearly distinguished. First step is "permission to enter the door in the form of filing of a permanent resident status application, I-485" and second step is "permission to leave the door as a permanent resident through its approval." Both of the steps fall under the jurisdiction of the USCIS. Under the USCIS regulation, the controlling standard for the first step is the monthly Visa Bulletin and not actual visa number availability, meanwhile for the second step, the controlling standard is not monthly visa bulletin but actual visa number availability. Accordingly, if all the visa numbers are exhausted, the USCIS will be unable to approve any I-485 applications regardless of the Visa Cut-Off dates in the Visa Bulletin as the DOS will be unable to authorize a visa number beyond the annual cap under the statute. For this reason, the USCIS first contacts the DOS in each and every I-485 application case to obtain the visa number authorization before they "finally" approve the I-485 application for a specific individual. However, the job for the USCIS is totally different when it comes to decision of "accepting" I-485 applications. They totally rely on the monthly Visa Bulletin regardless of the actual visa number availability and the agency is not required to first contact the DOS to determine whether they should accept the I-485 application for each individual I-485 filing. The USCIS thus automatically performs "receipting" I-485 application inasmuch as the priority date of the specific individual I-485 application is the same or earlier date of the cut-off date shown in the Visa Bulletin.
In the present situation, the USCIS has taken out almost all the EB visa numbers for FY 2007 (09/30/2007) before July 1, 2007 to adjudicate the pending and backlogged I-485 applications. Most of these applications have yet to be adjudicated using the visa numbers which have already been authorized. When it comes to these two cases, there are two open questions which have yet to be answered. The first question is whether the USCIS will continuously return the visa numbers for these cases. Report indicated that the USCIS started returning some of these numbers back to the DOS. Should this take place, the existing EB-485 waiters will expererience a long-wait to obtain approval of their backlogged EB-485 applications. The second question is "whether one's EB-485 application was tagged before July 1." At this time, this information is not available to anyone other than the USCIS itself. It is likely that this information will remain under the rug indefinitely. Accordingly, once his/her case was tagged, even though there is a chance that his/her visa number has been returned to the DOS, he or she will have a good chance to get I-485 application approval in the coming months. We may call them "lucky devil you!"
The other EB-485 waiters will turn out to be a big victim to the DOS/USCIS decision yesterday. Since there will be no visa numbers available until October 1, 2007, the people whose EB-485 applications were "not tagged" before July 1 will experience a tremendous delay in obtaining the green card. When it comes to the delays in obtaining the green card approvals, the new filers in July and those filers before August 17 will also witness a tremendous delays and will have to endure a long and long journey to leave the pipeline of the green card process. Why? As we reported quite earlier in this visa fiasco, we even estimated that approximately 750,000 individual EB-485 applications can be poured into the system during this unusual period of visa number availability as affected by the upcoming filing fee increases and more importantantly the anticipated potential huge visa number retrogression ahead during when they may not be able to file their 485 applications because of the retrogression. After all, the system has only 140,000 numbers for the entire EB categories for each year. Go figure! What would look like the waiting time for the current EB-485 filers and the current EB-485 filers before July 1, 2007!
We have no intention to spoil the exhuberation which a huge number of new filers will experience for the next 30 days. We are writing this just to remind the immigrants that the journey is not over and there is more important task ahead for the foreign workers. It is a legislative fight. The current employment-based immigration system is horribly broken and choked to the level of Microsoft Corporation proclaining that they would outsource the work to Canada. The system has failed to meet the new challeges under the ciber age and globalization of world economy by refusing to reform the employment-based immigration system years and years. The current employment-based annual quota, annual national limit, and prohibition of recapture of unused EB visa numbers are just a tip of iceberg which were enacted years and years before the current new age arrived. The system is too archaic to meet the new challenge in the current global economy and the ciber space technology age. The country has grown from a child of 10 years in age to an energetic teen-ager and still asks the child to live on with the outfits which were given to them when they were ten years old! The country desperately needs the reform of the employment-based immigration system, even for the purpose of just updating and accomodating the changes during the last two or three decades. It cannot go on with the current system. America should remain a vibrant society and keep remain a leader of the global world. America cannot retreat to the old archaic isolationism and a nationalism under the ever changing global world. Rather than breeding a fear of growth into the global economy, the leaders of the country should come forward to squaredly meet the new challenges with a vision under the inevitably changing global economy. The America started with pioneers whom the nation cherishes. We should never abandon the sprit of a pioneer and lose the identity of "America."
We call on the political leaders and legislators to collect pieces together which were smashed and buried during the difficult political battle of CIR and introduce a bi-parisan employment-based immigration reform legislation as soon as possible. Madame Zoe Lofgren showed an incredibly powerful strenth and leadership in the very difficult visa number viasco. We urge Rep. Lofgren continuously show such leadership and initiate the legislative process for employment-based immigration reform in the House. During the visa number fiasco, we were somewhat disappointed with the Senate leaders distancing themselves from an issue that touches lives of hundreds and thousands people. However, we want to look at the situation from moe positive perspectives of the event and believe that the Senate leaders had enough confidence in the leadership of Rep. Lofgren and did not disrupt the political process which was initiated by the Congresswoman. However, it is time for the Senate leaders to actively initiate and participate in the employment-based immigraion reform legislation. We understand that Senator Cornyn's SKIL bill had a bi-partisan support for the past two years in the Senate and we urge the Senate to work on this bill again. We understand that current employment-based immigration system has a room for correction to prevent frauds and abuses. In a way, we understand Senator Durbin's leadership to clean up the problems in the current employment-based system. The Senator has been working on introducing H and L visa reform bill for preveention of frauds and abuses to pass as an amendment to the Defense Authorization bill, H.R. 1585. We urge Senator Durbin to also join in the Senator Conyn's SKIL bill incorporating his H and L reform proposal. We realize that the H.R. 1585 bill is about to complete the process and head for passage soon, and under the circumstances, it may already be too late to reintroduce the SKIL Act as an amendment to this bill. But the legilstive process should not end with the Defense Authorization bill. We strongly urge Senator Cornyn to work with the leaders of both sides of the aisle in the Senate to reintroduce the SKIL bill as soon as possible. We understand the passion of Senator Cornyn against certain issues in the CIR. That issue should be left to another chapter of the future legisaltive process. We urge him to keep his same passion for needs for reform of employment-based immigration system and quickly work on reintroducing the bill in the Senate. The public opnion appears to be skeptical about such bill in the aftermath of the CIR death, but the nation desperately needs political support for the businesses, research industry, academic institutions, small and medium businesses, and continuous new bloods flowing into the nation by the foreign brains. Time appears to work against us, but we should try. Otherwise, millions of talented foreign workers and their family members will suffer for a long time with no clear light at the end of tunnel for their journey for immigration.
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