On Oct 21 2015 by Lisa T. Felix

Understanding Recent Immigration Debacle Through Yogi Berra

The death of New York Yankees legend Yogi Berra in late September was an apt occasion to fondly recall his legendary quotes. At the same time, we in the immigration community were working through a governmental debacle, to which several Yogi-isms seemed especially applicable.

“Even Napoleon had his Watergate.”

The debacle has been labeled “visagate,” and it belongs to the Department of State (DOS) and the Department of Homeland Security (DHS).

To understand visagate, one must know that eligibility to take the last step in the permanent residence (green card) process is controlled by a quota system that makes specific numbers of green cards available, for specific immigrant classifications, at specific times. The quota system controls when an individual may file the last part of the green card application, and actually become a permanent resident. Because quotas limit any one country from receiving more than 7 percent of the available visas in each category, larger countries have greater delays (longer lines). Iceland (population 325,000) is never affected, while India (population over 1.2 billion) has severe filing backlogs. For example, filing eligibility for Indian citizens based on employer sponsorship for master’s degree-level jobs is backlogged by more than 10 years.

When an employer or family member takes the first qualifying step in the green card application process, the intending immigrant is assigned a “priority date,” which is like the take-a-number ticket you get at the deli counter. Intending immigrants must wait until their priority date is called to file the last piece of the green card application (and then wait another four to eight months or more for approval).

The October 2015 visa bulletin (issued Sept. 9) offered an intriguing innovation that took effect Oct. 1. Rather than calling up just one priority date, a two-tiered system was established. The bulletin added a new “filing eligibility” date to the traditional “final action” date. The final action date identifies applications that are eligible for actual processing and adjudication, whereas the new filing eligibility date allows additional individuals to file their applications and have them made ready for adjudication, allowing the available visas to be distributed more efficiently.

The addition of the filing eligibility date was viewed as a major step forward for individuals in backlogged categories because filing the final part of the application can impart significant benefits to the applicant, including the ability to change jobs more easily, permission to travel abroad without the cumbersome visa application process, and ability for the applicant’s dependents to receive work and travel permission.

Under the original October bulletin, the new two-tiered system shaved off six years of wait time (for filing eligibility only) for the Indian software developer whose employer started the green card process 10 years ago (although it’s still a 10-year backlog for the final action stage). The new filing eligibility date moved the adult Mexican child of a U.S. citizen forward by about a year (although it’s still a 20-year backlog for final action).

In reasonable reliance on the visa bulletin, long-waiting eligible immigrants rushed to assemble their applications—expensive dossiers, requiring substantial background documentation for proof of legal status, security background checks, and other admissibility criteria. Immigration firms nationwide went into high gear preparing for the first filing date, Oct. 1.

“The future ain’t what it used to be.”

The excitement was short-lived. One week before Oct. 1, the DOS backtracked and issued a revised visa bulletin, harshly regressing the filing eligibility date for Chinese, Indian and Filipino professionals, and adult Mexican children of U.S. citizens. The revised bulletin stripped away the opportunity to file for years’ worth of waiting applicants. It was estimated that as many as 95 percent of individuals who would have been eligible to file on Oct. 1 could no longer do so.

“We made too many wrong mistakes.”

The reasons for the department’s decision, and the timing of it all, are murky. The DHS indicated simply that the dates were adjusted “following consultations” with the DOS, to “better reflect a timeframe justifying immediate action in the application process.” Their about-face refused to acknowledge the impact of the government’s retrogression on the lives of real people, waiting patiently in the legal line to make their legal temporary status permanent. Applicants had paid thousands of dollars in legal fees, and immigration firms had devoted untold hours to preparing the cases for filing so they would be ready on Oct. 1.

“It’s like deja vu all over again.”

But this isn’t the first time this has happened. The DOS previously attempted to make a substantive revision to the visa bulletin that negatively affected the rights of otherwise-eligible individuals. In the July 2007 bulletin (issued mid-June 2007), the DOS called up the numbers for nearly all intending immigrants who had established priority dates. On July 1, these long-waiting applications began flooding in to the DHS. In response to pressure from DHS, the DOS tried to issue a revised bulletin July 2, with the DHS essentially threatening to reject the thousands of applications that had been properly filed July 1. In response to a threatened lawsuit, because the government did not take action until after the filing period had opened, the DHS agreed to accept all filings for a full month, according to the bulletin in effect on the first of that month.

“It ain’t over till it’s over.”

The American Immigration Lawyers Association (AILA) immediately sent a letter to Secretary of State John Kerry, Secretary of Homeland Security Jeh Johnson and Director of the Domestic Policy Council Cecilia Munoz expressing disappointment in the revisions, and asking that the original October bulletin be restored.

A petition was filed on the White House’s “We the People” site, noting that the initial addition of the filing eligibility date was in accordance with the president’s executive action on visa modernization.

Intending immigrants who would have benefited from the original filing eligibility date filed a class action complaint in U.S. district court seeking a temporary restraining order and declaratory and injunctive relief. The plaintiffs asked the court to strike down the revised version of the October visa bulletin and compel the DHS to accept eligible applications pursuant to the original Sept. 9 bulletin. The TRO request was denied, and the case continues.

The November 2015 visa bulletin was issued Oct. 9. But unfortunately, it published the same filing dates as the revised October bulletin. There is now no hope of filing unless the plaintiffs prevail in the lawsuit, or future visa bulletins move the filing eligibility dates forward. For most, there is the realistic likelihood that their decade(s)-long wait will go on and on.

“If you ask me anything I don’t know, I’m not going to answer.”

In the meantime, rather than addressing the illogic of its counting system, the government seems to think that reminding people that they can’t count on anything is sufficient. On Oct. 14, the DHS announced that, approximately one week after the DOS releases the visa bulletin each month, the DHS will post an announcement on its website to inform otherwise-eligible applicants whether they can rely on the dates in the visa bulletin. In other words: in immigration, like “in baseball, you don’t know nothing.”

Visagate is particularly frustrating to those affected, who are highly skilled employment-based immigrants. These immigrants have played by the rules for years, are present on temporary visas, and are prevented from moving their careers forward in many cases by the per-country limits and quotas on employment-based immigration. What seemed like a sensible reform to more efficiently process these applications has turned into a mess for which statutory reform will be necessary.

Reprinted with permission from the October 21, 2015 edition of the The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved.

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