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Something a little different, but if you’re advising a client who is waiting in line for an employment-based or family-based immigrant visa (e.g., basically, a Green Card), it’s critical that you know what the Visa Bulletin is, and how to use it.
So what’s the Visa Bulletin? The Immigration and Nationality Act (“INA”) creates annual limits on the number of immigrant visas that the U.S. Department of State (“DOS”) may issue to applicants worldwide in each government fiscal year. For family-based immigrant petitions, the limit is 226,000 immigrant visas per year. For employment-based immigrant petitions, the limit is 140,000 immigrant visas per year.
The INA has also established an “immigrant numerical allotment and control system” which, as the phrase suggests, controls how these annual immigrant visas are allocated within the groups referenced above.
The immigrant numerical allotment control system is administered by the DOS, and specifically the DOS’s Visa Office. Each month, the DOS publishes the Visa Bulletin, which summarizes the availability of immigrant visas as allocated among the various family- and employment-based immigrant “preference” categories in light of the numerical limitations noted above. Every month, the Visa Office determines the number of immigrant visas used thus far in the fiscal year, and then estimates future use and demand. In doing so, it is able to report which categories are “current” (i.e., immigrant visas are available), and which categories are “oversubscribed” (i.e., there is a backlog).
By reviewing the Visa Bulletin, you can (very) generally advise your client when he or she may be able to apply for an immigrant visa (if they are currently outside the United States) or for their Green Card (if they are currently inside the United States) in light of what your client’s “priority date” is.
Recently, U.S. Citizenship and Immigration Services (“USCIS”), in coordination with the DOS, reported that they were revising the procedures for determining immigrant visa availability for applicants who were in “oversubscribed” family- and employment-based preference categories. As reported, the revised process is intended to enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for immigrant visa issuance published in the Visa Bulletin. This was really good news.
In reporting this good news, the DOS revised the Visa Bulletin to now include “Application Final Action Dates”, which are the dates when immigrant visas may finally be issued, and “Dates for Filing Applications”, which are the earliest dates when applicants may be able to apply for their immigrant visas (or their Green Cards, if they are presently in the United States).
Under this new process, if an intending immigrant is presently in the United States, and has a “priority date” earlier than the listed “filing date” for their particular immigrant visa category in the Visa Bulletin, they will now be able to file their applications for their Green Card earlier than they would have been allowed under the old process. (However, they still have to wait for the “final action” date to become current before their permanent residence can be approved.)
For those intending immigrants who are in the United States and are stuck in a category that is substantially oversubscribed, this means they will be able to receive employment authorization and travel documents earlier than they would have under the old system (still while they await final action on their cases). Again, this is a really big deal (in a time when comprehensive immigration reform has been stymied at every turn).
Our country still needs comprehensive immigration reform. Without it, however, I suppose we’ll have satisfy ourselves for the time being with these regulatory “baby steps.”
 There is actually a third category, for what are referred to as “Diversity” immigrants, and the annual limit in this category is 55,000 immigrant visas year.
 A priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by the U.S. Department of Labor.
OK, so let’s break it down. Clearly the centerpiece of President Obama’s administrative “fix” of what he has repeatedly described as a “broken immigration system” are his initiatives to grant “deferred action” (essentially, temporary relief from being removed or deported from the United States) to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here. A second group of aliens unlawfully present in the United States who will benefit under the President’s actions are those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”, or “Green Card” holders).
Deferred Acton for Childhood Arrivals
So what are the specifics? In June 2012, President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as Deferred Action for Childhood Arrivals (“DACA”), whereby aliens unlawfully present in the United States who had been brought to the United States as children and who met other criteria could receive “deferred action.” In many cases, these individuals also received employment authorization. Eligibility for DACA, however, expressly excluded aliens unlawfully present who were over the age of 31, or who had entered the United States on or after June 15, 2007.
On November 20, 2014, President Obama modified the DACA program by eliminating the age ceiling and making individuals who began residing in the United States before January 1, 2010 eligible. Moreover, the President announced that DACA grants and accompanying employment authorization will, as of November 24, 2014, last three years instead of two. We’re informed that those eligible under the new criteria should be able to apply within 90 days of the President’s announcement.
Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents
Hand-in-hand with the expanded provisions of DACA was the President’s announcement that his administration would also be granting “deferred action” to the parents of U.S. citizens and LPR’s. This initiative is commonly called DAPA. Like those eligible for DACA, some applicants for DAPA will be eligible for employment authorization too.
Specifically, aliens unlawfully present in the United States, and who have children who are either U.S. citizens or LPR’s, will also be eligible for deferred action (and employment authorization) pursuant to the President’s announcement. To be eligible, in general, these aliens must be able to show “continuous residence” in the United States since before January 1, 2010, physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they request deferred action, (3) not being an enforcement priority under the administration’s newly announced enforcement priorities, and that they present no other factors that, in the exercise of discretion, would make the grant of deferred action inappropriate.
The Obama Administration estimates that approximately 5 million aliens unlawfully present in the United States could be directly affected by the expanded DACA and new DAPA initiatives. However, the actual number who apply for benefits under either program may be much smaller, depending on outreach, access, cost, and numerous other factors.
So What did President Obama Actually Do?
Immigration reform has arguably become the third rail of politics. Those on the political right will say that the President granted “amnesty” to all these aliens. I suppose whether that’s true depends on what your definition of amnesty is. I personally don’t believe that’s the case. Here’s what I can tell you.
A grant of deferred action is not “legalization” as that term is commonly understood in the world of immigration. Legalization is typically a process whereby aliens who are unlawfully present in the United States acquire legal status, typically as LPR’s. LPR’s can then typically apply for U.S. citizenship after a statutory period of time (and assuming they meet certain conditions). That’s not at all what happened here.
Aliens granted deferred action are generally “lawfully present” in the United States under federal law. That’s it. They may also be eligible for certain benefits, like applying for driver’s license, but by and large, they would not be eligible for public benefits.
Being “lawfully present” in the United States is not the same as being in a “lawful status.” Aliens granted deferred action are not in a lawful status. Thus, a grant of deferred action, in and of itself, does not result in an alien obtaining a Green Card, and as a result, such an individual cannot eventually apply for citizenship. Indeed, aliens granted deferred action could conceivably have their status terminated by Congress in the future.
Of course, I personally hope this will not be the case, but one never knows. The next two years may tell us a lot. Politics is a funny thing.