In both the October (2009) and January (2010) Visa Bulletins, the State Department's Visa Office offered certain predictions as to future Visa Bulletin cutoff date movement during the balance of this fiscal year. Now, seemingly suddenly, those projections are no longer valid. Many people are puzzled and are asking why this is so?

The first thing that must be understood is that the USCIS and the State Department are entirely separate agencies. The State Department's Visa Office (VO) has the statutory authority to administer the annual immigrant visa quota, but the USCIS is the largest "user" of visa numbers under the quota. Just as the USCIS cannot direct the VO to advance or retard cutoff dates, the VO cannot direct the USCIS to report their caseload more accurately.

In the past, the VO has had to make educated guesses as to the USCIS employment based (EB) adjustment of status (AOS) backlog. We have discussed how the visa allocation system works in previous articles in this Newsletter and won't go into it again here. Suffice it to say that Visa Bulletin cutoff dates are a reflection of the intersection of the known availability of visas in each category as measured against the known demand.

Knowing the availability of visas is easy and can be done with precision. Knowing the availability of the demand for visas (pending cases) is much more difficult.

Ascertaining the demand for visas within the Department of State system (overseas consular immigrant visa processing) is something that can be done with precision. All such cases must first go through the State Department's National Visa Center (NVC). This allows the VO to obtain an accurate count of the number of cases in that pipeline, months before any of them require visas.

The problem lies with the adjustment of status cases filed with the USCIS. Until very recently, the USCIS made absolutely no effort to ascertain and compile the individual priority dates, preference categories, and countries of charge of these cases. As a result, it became very difficult for the VO to estimate the demand in any given month for visas. The VO was dependent upon using historical USCIS adjudication patterns to guess upcoming AOS demand.

In 2009, the USCIS Ombudsman brokered a deal whereby the USCIS would begin pre-adjudicating pending EB AOS cases. That is, they would review all pending cases. If a case could not be approved, it would be denied immediately. If a case appeared to be "approvable" however, it was placed in a special queue as "pre-approved" and the preference classification, priority date, and country of charge were reported to the VO. This allowed the VO to begin to compile an accurate picture of pending demand at USCIS offices.

Unfortunately, the USCIS effort was far from comprehensive. Thus far, they have only attempted to compile information for pre-adjudicated cases. That is, they are not making any attempt to gather this information for cases as they are filed. Also, they have only gathered information for about two-thirds of the EB AOS cases that are pending at the Nebraska and Texas Service Centers.

The personnel at VO believed they were getting comprehensive EB AOS case information - they weren't. The USCIS only gave the VO two-thirds of the service center case data. More importantly, the USCIS sends a very large number of EB AOS cases to district offices for interviews prior to adjudication or pre-adjudication. These cases are not counted and their data is not sent to the VO until an actual request for a visa is made by USCIS.

In January, the VO discovered that two-thirds of all EB3 visa number requests were coming from district offices where the case data had not been provided previously. As such, it came as a complete surprise to the VO. When VO looked into the matter further, they discovered that there are a very large, but unknown, number of EB2 and EB3 AOS cases that have been sent to district offices for interviews. Since the USCIS has not bothered to collect priority date, preference classification, and country of charge data for these cases, it is impossible for VO to gather accurate data as to the demand.

Why is this significant? Very simply, if the USCIS district offices do not adjudicate many of these cases, the "demand" for visas appears artificially low. If they then put on a special effort and adjudicate large numbers of them, demand appears artificially high. Either way, it is an inaccurate and unreliable source of data.

When the VO realized that they had based their earlier projections on inaccurate data, they had to withdraw them.