Visa Bulletin System under Court Scrutiny

Each month, the State Department releases the Visa Bulletin, which is how it announces who is eligible to apply for permanent residence. More precisely, it answers the question of “who has waited long enough for it?” This involves a very complex process, so we recently did our best to explain it in [two publications]. Regulations from the most recent comprehensive immigration act (which took effect in the early 1990’s) stipulate several immigration categories and a per country cap (among many other things). State’s method of compliance with these regulations is the determining factor for who gets visas, but the District of Columbia Circuit Court of Appeals has found that the Department may be going, perhaps illegally, much farther than law dictates.

Chinese EB-3 immigrant Meina Xie has been waiting for the State Department to give the go-ahead on her petition for permanent residence for over eight years. There is some evidence that this kind of delay cannot be helped. First and foremost, no more than 7% of any year’s annual visas can go to immigrants of one particular country. Being that she is from the world’s most populous country–and is petitioning in a lower preference category, delays were likely inevitable. Although the decision recognizes this, it finds also that State may be abusing its authority in the degree of subjectivity with which it distributes visas.

At the heart of Xie’s case is a statute that State is apparently ignoring: § 203(e)(1) of the Immigration and Naturalization Act of 1990. It says “[permanent residence] shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed.” Believing that citing this statute in court could finally end her waiting period, Xie sued. The judge in the original case sided with State, however, who argued that Xie’s complaint failed to identify a specific and discrete instance of its ignoring a legal responsibility. The appeals court disagreed, finding that asking for application of 203(e)(1) was sufficient grounds for a suit because State failed to show adequately that it was in fact following it.

Instead, the court took note of a practice that may be in violation of this rule. Xie falls in the “Other Worker” sub-category of EB-3, which is arguably the easiest employment based immigration option to qualify for. This translates to longer wait times, as there are only 5,000 visas each year available for Other Workers, out of 40,000 for all EB-3 immigrant workers. The rest of them are for the “Skilled Worker” and “Professional” sub-categories. For some reason, however, only 319 Other Worker visas appear allocated to China. The court noted that this makes it seem that State is applying the 7% rule from the per country limits to the Other Workers sub-category when it need only apply it to the total visas of all types given to people of a particular country.

It may at first seem acceptable that State is subdividing categories to ostensibly comply with a regulation affecting the universe of visas, but the Court said that doing so may be in violation of 203(e)(1). “Other Workers” from China who have been waiting for years could be given visas while other Chinese immigrants are made to wait a little longer. The Court stopped short of mandating this–and far short of saying that the statute mandates a literal one-by-one temporal queue. However, it did say that Xie probably deserved to have had her petition at least examined by now, considering how many immigrants across all categories that petitioned after her but had success long ago.

In the Court’s view, State did not provide sufficient evidence of its behavior’s being due to statute rather than in spite of it. In its defense/explanation, the Department said it has the ability to justify the visa distribution with its predictions of future demand, among other things. However, the Court held that so long as State appears that it may be in violation of 203(e)(1), the case will not be dismissed, as was done in the lower court. Instead, it reversed this dismissal and gave the case back to the original court with instructions to not rule in State’s favor unless it is better able to make its case. In closing, the Court noted with some annoyance that the Department did not share its formula for creating the Visa Bulletin. Without the formula in hand, it may be difficult to determine if statute is being upheld or not. It is therefore likely that State will soon provide the formula–or face an unfriendly ruling.