The new federal fiscal year begins on October 1, bringing an infusion of visa numbers. Recently, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, recently shared his analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).
Below are highlights from the October 2014 Visa Bulletin and Charlie’s predictions for future movement based on information available as of September 9, 2014.
EB-2 India: Retrogression Imminent
As articulated in Section D of the Visa Bulletin, retrogression of EB-2 India appears to be imminent, and could happen as early as November. The October 2014 priority date for EB-2 India is May 1, 2009. Given current demand, the priority date will retrogress, possibly to a date in early 2005. Members should plan to file adjustment of status applications by the end of October for any eligible EB-2 India clients, as the window of opportunity may be closing.
A major factor in this anticipated retrogression is the large volume of EB-3 to EB-2 upgrades for Indian-born applicants. Based on filings at USCIS, Charlie anticipates a huge volume of India EB-2 demand in the coming months.
NOTE: In addition, the maximum number of EB-2 immigrant visas which are available for India for Fiscal Year 2014 has been reached. Therefore, EB-2 India visas are “unavailable” until October 1, 2014. USCIS offices may continue to accept and process EB-2 India cases with priority dates earlier than May 1, 2009 during the month of September. However, instead of being acted upon immediately, those cases will be held in the Visa Office’s “Pending Demand” file until October 1, 2014, at which time they will be authorized.
Following our last report, Charlie announced that EB-5 China numbers were depleted through the end of the fiscal year (September 30, 2014). Though EB-5 China remains current for the start of the new fiscal year in October, Charlie continues to predict that a cut-off date will be imposed at some point during the second half of the fiscal year, possibly as early as May. This prediction is based on the assumption that USCIS will continue to issue approvals of EB-5 petitions at the current rate, as well as an assumption that a significant portion of the more than 5,000 applicants with approved EB-5 petitions at the National Visa Center (NVC) will come forward to be processed. It is also likely that more applicants will come forward to finalize action on their cases as we enter the final year of the three-year regional center pilot program. It is hoped that sufficient demand data will be available in January which will help in predicting future movement in this category.
Demand for both employment-based and family-based visas for the Philippines continues to decrease which accounts for the advancing priority dates in these categories. The cut-off date for the EB-3 and “Other Worker” categories for the Philippines is the same as it is worldwide, October 1, 2011. The NVC has been sending “Choice of Address and Agent” (DS-3032) forms to beneficiaries in an effort to spur demand but so far it is not materializing. Though demand is low and dates will remain favorable for the foreseeable future, this may change if many more applicants come forward to claim immigrant visas.
A Glimpse Into the Preference-Based Visa Process
Have you ever wondered exactly how DOS and USCIS coordinate to ensure preference-based visas are processed efficiently? This month, Charlie provides some insight into the process.
In spring 2007, DOS implemented a new system to address USCIS processing problems that resulted when cut-off dates retrogressed prior to final action on a case. Prior to that time, USCIS would request a visa number from DOS through an automated system upon completion of processing an adjustment of status application. DOS would either grant authorization and allocate a visa number, or deny authorization if the applicant’s priority date was not current. If authorization was denied, USCIS would place the file on the shelf and the adjudicating officer was required to monitor the Visa Bulletin and pull the case when the priority date became current. As a result of the spring 2007 upgrade, cases that are denied authorization due to a non-current priority date are now accepted by DOS and maintained in a “Pending Demand” file. When the priority date becomes current, DOS automatically authorizes the case and notifies the appropriate USCIS office.
This system enables greater efficiency for USCIS and is a safeguard against cases “slipping through the cracks.” It also provides DOS with greater visibility of the pre-adjudicated demand, thus enabling Charlie to better predict priority date movement.
Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or firstname.lastname@example.org.