Visa number retrogression is shockingly cruel

Sunday, December 12th, 2010
By: Jonathan MontagJ.D.

Someone called me a couple of weeks ago and asked me about the “new law” they heard about on TV that allows people to bring their families here without delay right away. I explained that there are some new laws under discussion – they have been under discussion since 1996 when “the great triangulator”  signed an immigration reform law, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) that made many harsh changes to the law. (Lets hope seeing him at the bully pulpit this week discussing how politics works is not a portent for how his mentee will handle immigration reform legislation with the new Congress, to wit, agree to making the laws tougher for everyone). However, I know of no newly passed law. I wondered if the caller misunderstood something he saw on Spanish TV where either because of viewers’ hopes distorting their perceptions of what they hear, bad reporting, or because Spanish tenses are as complicated  for actual speakers as they are for U.S. high school kids studying Spanish, speculation about what legislation may pass was confused with legislation having actually passed.

It later dawned on me that something was going on that, though it was not a new law, was something that could be interpreted as a new law as it was actually true that some people could actually come to the United States sooner than ever before. What was happening is that there were some dramatic jumps forward in the waiting lists for certain immigrant visas.

For the uninitiated, allow me to explain. Permanent residents and U.S. citizens can petition for relatives to immigrate to the United States. Some have no wait lists in visa availability. These are the “immediate relatives” which include spouses, parents (the citizen must be over 21 to petition for his or her parent), and children (under 21 years old) of U.S. citizens. Other relatives can also petition for relatives – there are five “preference categories,” 1, 2A, 2B, 3, and 4, all defined in the State Department’s Visa Bulletin. Because more people want to immigrate to the United States than there are available visas for, there is a wait list. Filing a petition for a relative determines the relative’s place on the wait list. The filing date for a visa becomes a “Priority Date.” The Visa Bulletin is published each month by the Department of State with the current waiting times for the different categories for different countries based on the Priority Date. Countries where there is great demand to immigrate to the United States have longer wait lists than countries where the demand is lower. While most countries are lumped into one waiting list, called “All Chargeability Areas” in the visa bulletin, China, the Dominican Republic, India, Mexico, and the Philippines have their own waiting lists. In the January 2011 Visa Bulletin, the longest wait is for a Filipino to bring his brother or sister, the 4th preference category, where people with petitions with Priority Dates of January 1, 1988, are now ready to receive their permanent resident visas. It amazes me that people are still interested in immigrating to the United States 22 years after being petitioned for.

It is these wait lists that recently have been jumping forward like crazy. Let’s examine the jumps in just one category – the 2A category – which is the spouse and children (under 21) of permanent residents. Here is what the wait list looked like for All Chargeability Areas and for Mexico.

Visa Bulletin             All Chargeability Areas                        Mexico

May 2009                 October 8, 2004                                   April 1, 2002

June 2009                 December 15, 2004                             May 15, 2002

July 2009                  December 22, 2004                             June 22, 2002

August 2009             January 15, 2005                                September 22, 2002

November 2009       August 15, 2005                                  June 15, 2003

December 2009        November 1, 2005                              October 1, 2003

January 2010           January 1, 2006                                 January 1, 2004

February 2010          March 1, 2006                                   March 1, 2004

March 2010              April 1, 2006                                      July 1, 2004

April 2010                June 1, 2006                                       January 1, 2005

May 2010                 December 1, 2006                              June 1, 2005

June 2010                January 1, 2008                                 December 1, 2006

July 2010                 July 1, 2008                                       June 1, 2007

August 2010             March 1, 2009                                   March 1, 2008

September 2010       January 1, 2010                                January 1, 2009

October 2010           April 1, 2010                                      January 1, 2010

November 2010       June 1, 2010                                      March 1, 2010

December 2010        August 1, 2010                                  March 1, 2010

In a year, the waiting list went from six years to nine months for Mexico, assuming that dates move a month each month. (If dates always moved faster than a a month each month, there would be no wait lists; the supply of visas would always be larger than supply). However, in the last year, dates moved much, much faster than that. For example, in June 2010, the All Chargeability Areas jumped thirteen months and for Mexico, nineteen months.

If you were a newly minted Mexican permanent resident desiring to bring your wife to the United States, your old strategy in May 2009 logically would have been to naturalize and then bring her, as it would have been faster to wait to naturalize (five years after becoming a permanent resident) and then immigrate your wife as an immediate relative than to petition as a permanent resident and wait what looked like about seven years for the visa to become current in the 2A preference category. Of course, a Mexican permanent resident could have petitioned as a permanent resident and then upgraded the petition to immediate relative when he naturalized, but based on the historical track record of the existence of long backlogs, he could assume the numbers would never move faster than how long it would take to naturalize.

The same calculus would not apply to a Mexican permanent resident in December 2010. A person who applied in March 2010 would be eligible in December 2010, a nine month wait. As it takes about six months for a petition to be approved after filing it, it seemed like soon after the petition was approved, the visa would be available. Factoring in how fast the numbers had been advancing – much more than a month every month since May 2009 – the wait would probably not even be three months. No wonder the word on the streets was that some new law was allowing relatives to come without any wait. (In immigration law, waiting for six months for a visa to be approved, another two or three months for it to become available on the wait list and a few more months until an interview is scheduled at a U.S. consulate is considered “no wait.” Makes you appreciate the DMV.)

Now the bad news, the very bad news. Look at the numbers just published for January 2011.

All Chargeability Areas                    Mexico

January 2011              January 1, 2008                            April 1, 2005

For All Chargeability Areas, the numbers retrogressed two years and eight months. For Mexico, four years and eleven months. Divided families who filed petitions with reasonable expectations that their spouses or kids would soon be with them have just had those expectations crushed. People that spent large sums of money for petitions (currently $420 for a petition and $492 for visa processing) now will find that their child’s or spouse’s case will be left on a shelf somewhere for what may be several years. Children approaching 21 years of age will then be too old for the 2A preference category and the next category, 2B, is even longer.

As the chart above shows, the visa wait lists were moving at a fast clip for more than a year, but it is quite remarkable that the Department of State did not see that it was creating a bubble that would soon burst. Were the number setters at the Department of State, who presumably want to fine-tune supply of visas and demand for visas, just mistaken in their estimates that has resulted in a multi-year retrogression or was there a conspiracy to fire up demand to raise revenues as more people paid the fees to petition for their relatives and paid the State Department for processing that seemed imminent and now is remote? When we are driving and want to maintain our position in traffic, we ease on or off the gas gently to gradually adjust our distance from the cars in front of us – we don’t keep flooring it and jamming on the brakes causing crashes. In this case, it seems that the Department of State has been flooring it and now has jammed on the brakes causing a dramatic crash.

You cannot imagine how big a disappointment this is for a lot of people. Posted December 12, 2010.



2 Responses to “Visa number retrogression is shockingly cruel”

  1. I’m a permanent Resident and I applied an I-130 in August 26, 2010 for my spouse that lives in Amman, Jordan. The petition was approved in November 30th and I received an email from the NVC to pay the fee for the Visa and the IV & AOS $404 + $88. I paid for both online and received the cover sheet that I’m supposed to attach with my forms by email. I filled in the forms and mailed it to NVC.

    Now What is next? I am waiting for the interview date from NVC, My question is will the retrogression will affect my case?
    will the NVC contact the Embassy in Amman, Jordan to schedule an interview for my wife?

    1. Last month the State Department was giving visas to cases filed on or before August 1, 2010. Your case was close to that date so the State Department was “willing” to take your money and begin processing. Now they are processing cases from January 1, 2008, so your wife is far from being “current” in her category, 2A. There is no way to know when the wait list will reach August 26, 2010. If you become a citizen, then you can bring her without any wait list. Yours is the exact situation I discuss in the blog post — someone whose hopes were raised and money taken and then the expected outcome is snatched away.

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