Seriously, When Will My Visa Become Available? : Providing Honest Advice in Family-Based Cases
By Charles Wheeler
Your client is an LPR who wants to file an I-130 petition for her 23-year-old Mexican daughter. You look at the Visa Bulletin for May 2012 and see that applicants with priority dates before December 1, 1992 are just now current in the F-2B category. Your client is eager to start the process, sign the forms, and pay the filing fee. But she also wants to know when her daughter is likely to qualify for a green card. You briefly explain the worldwide quota system for family-based immigrant visas and the current backlog in the F-2B category for Mexico. You then answer her specific question with one of the following:
(a) We can expect that your daughter’s visa will become available around 2032, since we are now experiencing almost a 20-year backlog in that category.
(b) It is impossible to predict with any certainty because the Visa Bulletin moves both forward and backward based on demand in that category.
(c) It is hard to say because the system for allocating visas and determining when a priority date will become current is very complex and subject to factors beyond our control and knowledge.
Which answer is correct? Most practitioners, especially those starting out, would have stated (a), under the assumption that that the Visa Bulletin moves forward with at least some regularity, month by month. They would theorize that while there are periods of visa retrogression, demand for visas over time tends to even out. But the experienced practitioners know better, and they would have responded with either (b) or (c) or some combination. They know that the Visa Bulletin is not an accurate gauge of when a priority date will become current, and therefore they are not going to make the mistake of guessing or raising expectations. It is best to play it safe and not make any predictions.
But the correct answer is (d), which is probably not the answer you would have given nor the one your client was expecting to hear. Any other answer is just wrong and does a disservice to your client. All the other answers hide the truth about how the State Department allocates visas and the likelihood of this client’s daughter ever becoming current in the F-2B category.
State Department visa allocation is not a mystery, nor is predicting demand for visas in a particular category. We can actually see with some precision the backlog in each family-based category for each country and can predict with at least some degree of accuracy when that category will become current for a petition filed today. This is due to reports compiled and available on the State Department’s website, which were brought to our attention in an excellent article by Marti Jones titled “Cien Años de Espera: The Long Delay for Immigrant Visas,” Voices, American Immigration Lawyers Association, Vol. 1, Issue 5 (September/October 2011). Marti is executive director of the Immigration Project, a nonprofit agency in southern Illinois. We are very grateful to her exposure of these reports and her mathematical analysis on which this article is based.
As we all know, to determine whether a visa applicant in a family-based preference category is “current,” one must compare the priority date with the date listed in the monthly Visa Bulletin. The priority date is the official date that the USCIS has determined the petition was filed. In order to be current, the priority date must precede the date on the Visa Bulletin that corresponds to the preference category and country of nationality. The State Department determines visa availability based on statutory limits for each preference category, per country caps, current backlogs, and estimated demand. For example, in the F-2A category, there is an annual limit of 87,900 visas that can be used in any fiscal year, but no per-country caps. In contrast, for the F-2B category, there is an annual limit of only 26,266 visas that can be used in any fiscal year, as well as a per-country limit of 7 percent of this number.
It is impossible to gauge future visa availability by looking only at the Visa Bulletin for a specific month, because one must take into account the current backlog in each category. That is determined by looking at the DOS Annual Immigrant Visa Waiting List Report, as well as a history of visa advancement in that particular category. These reports are available on the State Department’s website; for the most recent report, go to http://www.travel.state.gov/pdf/WaitingListItem.pdf. For example, looking only at the Visa Bulletin for May 2012 would reveal that petitions in the F-2B category for countries other than Mexico and the Philippines are current if they were filed before February 22, 2004. But the eight-year and two-month difference between that date and May 1, 2012 does not mean that petitions in the F-2B category filed today will become current in eight years and two months. Similarly, priority dates prior to December 1, 1992 are now current for Mexicans in the F-2B category, but that does not mean that those petitions filed today will be current in 20 years. In fact, the anticipated delays in those categories are quite a bit longer, and that is due to the visa backlogs.
There are only 26,266 visas available each year in the F-2B category and there are three oversubscribed countries – Mexico, Dominican Republic, and the Philippines – that are at or above the 7 percent per-country cap. To determine the number of visas available “worldwide” to non-oversubscribed countries in the F-2B category, one must first calculate those designated to the three oversubscribed countries (3 x 1,838 = 5,514). Therefore, the number of visas available to these other countries is 20,752 (26,266 – 5,514). The number of pending F-2B applicants worldwide as of November 1, 2011 was 517,119. The number of pending F-2B applicants from the three oversubscribed countries is 322,829. Therefore the number of pending F-2B applicants from the non-oversubscribed countries is 194,290 (517,119 – 322,829). To arrive at an estimate of the length of time it will take for these pending applicants to become current for non-oversubscribed countries, divide the number of applicants by the annual limit (194,290 ÷ 20,752 = 9.3 years). In other words, an F-2B applicant from a non-oversubscribed country who filed a petition today is likely to become current in September 2021.
This is a fairly accurate assessment of the length of time it will take to get through the current backlog in that category. While some F-2B visa applicants during that time will die, marry, withdraw their applications, or convert to a more advantageous category, this decrease will be offset to some extent by the number of children born to these applicants, who will be added to that backlog as after-acquired derivative beneficiaries.
Let us return to the client with the 23-year-old Mexican daughter. The number of F-2B visas available each year to Mexico is 1,841. The number of pending F-2B applicants from Mexico is 212,621. The length of time it will take to clear up the current backlog is approximately 115.5 years. In other words, a Mexican who files a petition today for his or her unmarried son or daughter in the F-2B category can expect that child to become current at the end of 2127. That is why the proper answer to your client’s question on when the visa will become available is “never!” You could be off by a few years, or even a few decades, but the answer would still be the same.
Let’s not overlook the fact that if the LPR petitioner naturalizes, the unmarried son or daughter would convert to the F-1 category and thus immigrate faster. Isn’t that right? But by applying the same formula and using current State Department numbers, one realizes that the first preference is backlogged almost as far as the F-2B, or else for practical reasons it makes little difference. An applicant from a non-oversubscribed country can expect to wait approximately 8.7 years (175,093 ÷ 20,124) in the F-1 category instead of 9.3 years in the F-2B, so there is little benefit in the petitioner’s naturalizing if the sole purpose is the child’s converting to a better category. Of course, naturalization brings with it many other rights and benefits independent of family-based immigration.
For Mexicans, however, the date on the Visa Bulletin has progressed only 2 years during the last 17. Today’s Mexican filing in the F-1 category can expect to wait approximately 55 years to become current (90,546 ÷ 1,638). Now that is better than waiting 115 years, but try explaining that to your client or her unmarried 23-year-old daughter. Then try using that argument as a motivational tool to encourage the mother to naturalize.
For Filipinos, however, naturalizing so that your son or daughter can immigrate faster is actually counterproductive. The first preference is backlogged farther than the F-2B for those from the Philippines, and has been for many years. Congress added a special section to the Child Status Protection Act in 2001 that allows these sons and daughters to “opt out” of this automatic conversion when their parent naturalizes. But these unmarried sons and daughters have to request to remain in the F-2B category, which right now is backlogged almost 30 years (52,823 ÷ 1,841 = 28.7).
Every practitioner should consult the most recent Annual Immigrant Visa Waiting List Report to determine current backlogs for each country and each category. Then perform the mathematical computation using the formula set forth in this article to arrive at a realistic understanding of how long a client will have to wait before the priority date of a petition filed today will become current. If you did that, you would realize that the F-3 category is backlogged approximately 110 years for Mexican married sons and daughters (180.982 ÷ 1,638). You would realize that the F-4 category is backlogged approximately 164 years for Mexican siblings (746,815 ÷ 4,555). If you knew that, would you still encourage your client to file the petition?
Every practitioner should know when a client can realistically expect to become current in the relevant family-based category if he or she were to file a petition today. While such information may discourage some clients from proceeding with their petitions, it will allow you to practice immigration law with the proper measure of insight and integrity. After the State Department released these reports, it let the genie out of the box. Continuing to claim ignorance or refusing to predict visa availability should no longer be an acceptable practice.