This is a question that is being asked often these days. The answer is unequivocally yes, visas are being issued. This year, for the first time ever, we are seeing the effect of a new policy that has been put in place. Before explaining the new policy, let me first explain the old.

The Visa Office of the U.S. Department of State is the organization given the authority to administer the annual immigrant visa quota. To do this, they have to estimate the demand for visas against the available supply. The supply is a known quantity, but estimating demand has always been something of a black art.

The State Department has always had an accurate count for the precise demand at overseas consular posts. The problem has been the demand that comes from the USCIS. Since about 85% of all employment based immigrant applications are processed through the USCIS, accuracy there is vital to any effort to ascertain the number of actual employment based cases ready to be closed (approved).

In the past, the USCIS made no effort to determine how many employment based applications had been filed, or the priority dates, preferences, and countries of chargeability of the applicants. Also, contrary to their goal of adjudicating cases on a first in, first out basis, the actually processed cases on a more or less random basis. That is, if a case happened to be at a service center when its priority date was current, they would adjudicate it. If not, it would go to archives to await visa availability. This practice often resulted in freshly filed cases being approved, if visa numbers became current temporarily, at the expense of cases with earlier priority dates that had been sitting in USCIS archives for years.

The practice of not adjudicating cases until their priority dates became current resulted in the INS/CIS wasting more than 600,000 visas between 1996 and 2007 (according to the USCIS Ombudsman). These visas were wasted because the INS/CIS filed to adjudicate enough applications to exhaust the annual quota each year.

Because the Visa Office did not have accurate information from the INS/CIS, they were unable to advance cutoff dates sufficiently far enough to attract enough applications overseas so that the quota could be exhausted through cases processed abroad.

In 2006, the Visa Office began rapidly advancing cutoff dates in the second half of the fiscal year (April – September) in order to be able to process more cases overseas. Even though this resulted in the issuance of immigrant visas to consular processing applicants with priority dates several years more recent that pending adjustment of status applicants, it at least avoided the irrevocable loss of visas that would have resulted otherwise.

In 2007, in what many believe was an effort to force the issue with USCIS, the Visa Office made all EB cutoff dates (except for “other workers”) “current” for the month of July. This averted the loss of approximately 40,000+ visa numbers that would have otherwise been lost as a result of the inability of the USCIS to process enough applications.

Remember, it isn’t the number of cases filed that counts. It is the number of immigrant visas or adjustments of status granted that matters. A visa number is only used when an immigrant visa is issued or an AOS is approved.

Following the massive filings in 2007, the USCIS complained bitterly to the Visa Office about the massive backlog that resulted from all cutoff dates becoming “current” overnight. After a great deal of backing and forthing, the CIS Ombudsman brokered a compromise. The USCIS would being adjudicating all AOS applications in its backlog. Those that should be denied would be denied immediately. Those that could be approved, but for the availability of a current visa number would be designated as pre-approved.

The USCIS then reported all of the pre-approved cases to the Visa Office. The information for these cases was then incorporated into the Visa Office’s automated visa tracking system, together with cases from the Department of State’s National Visa Center. In theory, once this data collection is complete, the Visa Office will have a precise picture of existing demand.

The Visa Office calculates the number of visas that can be issued each month, in relation to the available visas under the quota. They use the data in the automated system. Once they set the cutoff dates, both overseas consulates and the USCIS are notified electronically on a case by case basis for all cases for which visa numbers are available. Once this happens, it is up to the USCIS to pull the file and close the case.

Based on the latest inventory released in January, 2010, it appears that the USCIS has worked its way through and inventoried about 209,000 of the approximately 300,000 pending adjustment of status applications pending with that agency. Of these, it appears that they have pre-approved about 180,000 of these cases. There are at least 29,000 cases that have been inventoried (preference, priority date, and country of charge determined), but not yet adjudicated, and about 90,000 that have not even been inventoried. This is an improvement over where they were last September, when they released their first inventory.

As the USCIS continues to inventory cases, and later adjudicate them, we will see the known demand figures become more and more accurate. Ultimately, when the USCIS inventory is complete, we will know the existing backlog with absolute precision. Until that day arrives (hopefully before the end of 2010), the movement of cutoff dates will remain something of an art.

One problem that still exists is USCIS productivity. Despite this newly designed “fool proof” system, the USCIS dropped the ball at the end of the last fiscal year and failed to close out enough cases to exhaust the quota. Understand, these were cases that had been pre-approved and for which the Visa Office had sent out individual notices with visa numbers included. The system may have been designed to be “fool proof” but as it turned out, it needed to be “USCIS proof.”

This year, we have not seen much forward movement for employment based cutoff dates. To answer the question asked in the title of this article, yes, visas are being issued. I’m told that approximately 40,000 employment based visas were issued in the first three months of this fiscal year. Substantially all of those went to USCIS pre-approved, pending adjustment of status applications. As the fiscal year advances, we can now expect to see cutoff dates begin to move forward. In some cases, we can expect to see rapid progress.