Originally Posted by
Spectator
Q,
IMO the discretion clause is about having the ability to refuse to adjust a person to LPR for any reason the Secretary of the DHS deems fit, even if they meet the requirements i.e it is not an automatic right.
Ultimately, as I re-read the conversation, I think we are probably talking at cross purposes.
I think we both agree that enough visas need to be available to move the dates within the current backlog.
My point is DOS may find it difficult to find enough visas early enough in FY2012 to move the COD to the end of the backlog.
As an extreme example, DOS couldn't move the COD to 15AUG07 in the October 2011 VB.
Clearly, for the July 2012 VB they could find enough visas and use 202(a)(5).
Really it is a debate about whether they can find enough in Q3.
In the best case, where porting is low and the COD doesn't move from the September VB date (thereby limiting any new PWMB from becoming qualified), DOS might be able to do something in Q3.
In the worst case, DOS won't be able to find enough visas until the July 2012 VB.
That would leave the possibility of some cases failing to be adjudicated within the fiscal year.
Having said that, USCIS were able to process some new PWMB this year in very short time scales. I have always maintained that USCIS can process cases in 3 months if they are motivated enough to do so. In that case it doesn't matter when the dates move.
Because there are so many potential cases even within a 15AUG07 COD, the numbers falling to EB3 would be fairly small anyway.
It's probably time to leave this and just see what happens.