[This is the second of three articles on the subject of immigrant visa quota management and how it relates to the establishment and movement of Visa Bulletin cutoff dates.]

In the “supply” article, we discussed the nature of the supply of immigrant visa numbers and how it is relatively fixed. In this article, we will discuss the demand that is made on the available supply of visa numbers.

Approximately 85% of all employment based immigrants (both principals and dependants) apply for lawful permanent resident status through the mechanism of applications for adjustment of status (AOS). The remaining 15% apply through the overseas consular processing (CP) procedure.  As a consequence of this phenomenon, CIS productivity drives immigrant visa demand.

Let’s look at two extreme examples to illustrate this point. We know that the annual supply of employment based immigrant visas is 140,000. Assume a situation where there are 300,000 fully qualified AOS applications on file with the CIS, spread pretty evenly across the preference categories.

If the CIS only adjudicates 50.000 AOS applications in a fiscal year, the prospective demand is reduced to 250,000 at that moment, but the actual demand is only 50,000. The remaining 250,000 are still in line, but the visa quota has only been reduced by 50,000 for that fiscal year. This leaves 90,000 unused employment based visa numbers available for the balance of the fiscal year.

The only other player in this game is the Department of State. Since the vast majority of prospective immigrants insist on using AOS, even if the Department of State’s overseas consular posts issue visas to everyone who has applied through their offices, tens of thousands of visa numbers will remain unused at the end of the fiscal year.

For purposes of calculating visa preference cutoff dates in the example just cited, the remaining 250,000 AOS cases pending with the CIS are largely invisible. While they represent potential demand, they do not become actual demand until the CIS orders a visa number for one or more of these cases while approving them and closing them out.

It is possible to have an enormous backlog of potential demand while at the same time having actual demand that is less than the available supply. In fiscal year 2006, for example, due to the inability of the CIS to process to completion a sufficient number of AOS applications, approximately 13,000 authorized employment based visa numbers were unused and thus wasted. To put it another way, 13,000 cases that should have been closed and counted against the 2006 quota were not adjudicated and now those same 13,000 cases must be counted against a future quota. When the CIS fails to adjudicate enough cases to exhaust the annual quota, the result is that potential demand increases by the number of visas wasted by CIS inaction.

Right now, the CIS is being secretive about the backlog of pending AOS cases. The backlog has grown to obscene proportions and they are justifiably sensitive about it. Consequently, they began concealing these statistics a couple of years ago. They also redefined the term “backlog” to artificially reduce the numbers.

Not wishing to beat a dead horse, but the issue of CIS productivity cannot be emphasized enough. Unless and until the CIS begins processing sufficient number of AOS cases, there will always be insufficient demand to exhaust the annual quota.

As will be discussed at greater length in the next article, the Visa Office of the Department of State (which has exclusive jurisdiction over allocation of visas) does take potential demand into account. Last year, for example, the Visa Office expressed concerns about the potential demand resulting from the Department of Labor’s backlog reduction centers’ completion of up to 100,000 pending labor certifications.

Because these cases had been filed in the 2001-2005 period, there was a significant likelihood that a very large number of cases with “old” priority dates would be entered into the system suddenly. This, in turn, could cause the retrogression of Visa Bulletin cutoff dates. This will be explained in detail in the next article. For now, simply accept as fact that the Visa Office was concerned about this substantial potential demand. As a result, they were cautious in moving cutoff dates forward until they learned that the actual number of such cases was less than 10,000.

Each year, the CIS makes grandiose promises that they will process record numbers of AOS cases as a result of improvements that they have made in their system. In the past, the Visa Office has accepted these representations. Last year, however, the Visa Office committed to making sure that no visas under the quota would be wasted. What happened is an interesting example of the interaction between supply and demand.

In fiscal year 2007, the CIS was not adjudicating cases fast enough to avoid wasting a substantial number of visas under the annual quota. The CIS Ombudsman warned in this 2007 Annual Report to Congress that:

“Based on USCIS use of visa numbers as of May 2007, at present consumption rates approximately 40,000 visas will be lost in FY 07 without a dramatic increase in USCIS requests of visa numbers.”

In order to assure that a sufficient number of employment based green card applications were received and acted upon, the Visa Office had to advance cutoff dates to the point where everything became current. Recall that approximately 85% of all employment based green card applicants use the AOS process rather than CP.

While it was clear that advancing cutoff dates would result in substantial new AOS filings, this was necessary in order to ensure that enough consular filings were also made. The difference between the CIS processing shortfall, and the maximum quota allocation was the immigrant visa application cases processed by consular posts overseas.

Roughly speaking, in order to get 40,000 additional applications filed overseas, they had to advance cutoff dates to the point where approximately 270,000 applicants would become eligible to file. In fact, about 300,000 people applied for adjustment of status when all priority dates became current. More importantly, enough people filed consular processing applications to exhaust fully the annual quota so that no visa numbers were wasted.

Looking forward, we can pretty much ignore the massive CIS backlog of potential demand cases and concentrate instead on the actual demand. If the CIS is adjudicating AOS cases at its customary pace, then demand will once again be insufficient to exhaust the available supply. On the other hand, if the CIS has stepped up its pace of adjudications, then they certainly have enough cases in their backlog to use up all available visas.

The tip off as to what they are doing will be Visa Bulletin cutoff date movement in April. If there is significant movement (as there was last year) then it is likely that the CIS is again lagging. If there is little or no movement, we will have to wait until July to see what happens then.

 

This article was researched and written by Jim Gotcher and Ron Gotcher.