7/25/2007

When it comes to the visa number requirement in the green card proceeding, there are two different steps which should be clearly distinguished. First step is "permission to enter the door in the form of filing of a permanent resident status application, I-485" and second step is "permission to leave the door as a permanent resident through its approval." 

Both of the steps fall under the jurisdiction of the USCIS. Under the USCIS regulation, the controlling standard for the first step is the monthly Visa Bulletin and not actual visa number availability, meanwhile for the second step, the controlling standard is not monthly visa bulletin but actual visa number availability.

Accordingly, if all the visa numbers are exhausted, the USCIS will be unable to approve any I-485 applications regardless of the Visa Cut-Off dates in the Visa Bulletin as the DOS will be unable to authorize a visa number beyond the annual cap under the statute. For this reason, the USCIS first contacts the DOS in each and every I-485 application case to obtain the visa number authorization before they "finally" approve the I-485 application for a specific individual. 

However, the job for the USCIS is totally different when it comes to decision of "accepting" I-485 applications. They totally rely on the monthly Visa Bulletin regardless of the actual visa number availability. The USCIS thus automatically performs receipting I-485 application, if the priority date of the specific individual I-485 application is the same or earlier date of the cut-off date shown in the Visa Bulletin.

In the present situation, the USCIS has taken out almost all the EB visa numbers for FY 2007 (09/30/2007) before July 1, 2007 to adjudicate the pending and backlogged I-485 applications. Most of these applications have yet to be adjudicated using the visa numbers which have already been authorized.