Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares 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 most recent “check-in with Charlie”, reflecting his analysis of current trends and future projections for the various immigrant preference categories.

Following an initial infusion of new visa numbers in October, some of Charlie’s predictions for this fiscal year are already coming to fruition in the November Visa Bulletin as reported in our blog of September 16, 2014.  

EB-2 India Retrogression
As Charlie predicted, EB-2 India will retrogress to February 15, 2005 as of November 1, 2014. Individuals born in India with EB-2 priority dates earlier than May 1, 2009 should file their adjustment of status applications before the end of October. No forward movement in this category is predicted for the foreseeable future.

EB-5 China
EB-5 China became current at the start of the new fiscal year in October, but as Charlie predicted last month, it will at some point become necessary to establish a cut-off date for EB-5 China, possibly as early as May 2015. Charlie will be speaking at a conference in San Francisco on October 23 and will have additional information to report to the public at that time.

EB-3 China “Downgrades”
The cut-off date for EB-2 China is December 8, 2009, approximately three weeks earlier than the cut-off date for EB-3 China, which is January 1, 2010. Charlie predicts that we are likely to see a cut-off for EB-2 China earlier than EB-3 China for a few months and that this is likely to prompt those with priority dates close to or within the EB-3 cut-off to file I-140s in the EB-3 category. This phenomenon is likely to last for a few months until these cases make it through USCIS, at which time the increased demand for EB-3 China will require a correction to that cut-off date.

Predictions for Forward Movement in the Preference Categories
As explained in the November Visa Bulletin, modest forward movement in the family-based preference categories of a few weeks to two months per month is possible. These predictions are based on information available in early October and will continue to be updated as the months progress and new information regarding the supply and demand for visas in the family-based categories becomes available.

In the employment-based preference categories, there is currently no movement predicted for EB-2 India, though EB-2 China is expected to progress by three to five weeks per month. Rapid advancement is expected in EB-3 China for the next few months until the correction described above kicks-in. A one or two week movement per month is expected for EB-3 India. EB-3 Mexico is expected to remain at the worldwide cut-off, as is EB-3 Philippines though for the Philippines, a roll-back might be necessary later in the fiscal year should demand increase dramatically.

Questions Regarding Unused Visa Numbers
An AILA member posed a series of questions following news reports of an estimated 200,000 unused visas which could be recaptured through administrative action.

Charlie agrees that there are approximately 220,000 family and employment-based visas that have gone unused, most of which can be attributed to the period between 1992 and 1997. Prior to the “dot com bubble,” demand was usually insufficient to use all of the available employment-based visa numbers in any given fiscal year. Since then, the increase in demand for labor in the IT sector and improved interagency processes have contributed to greater use of employment-based visa numbers in the fiscal year for which they were allocated. In the past, such unused numbers have only been recaptured through legislative action.

AILA’s Observations on Visa Allocation, Priority Date Movements, and Opportunities for Further Interagency Cooperation
In terms of immigrant visa allocation and usage, the State Department’s principal goal is to fully utilize all visa numbers that are available each fiscal year. Priority dates, therefore, move forward and backward based upon what is known about current and future supply and demand in the various categories. The more complete and reliable information the State Department has, the more precisely it can adjust cut-off dates to ensure full depletion of visa numbers and anticipate workload spikes. Relevant facts may include the number of visas pending at the National Visa Center and at consular posts, the number of approved I-140s attached to pending adjustment of status applications, processing times at USCIS and at posts, etc.

Although there has been significant interagency cooperation in recent years, there are still opportunities for improved efficiency and collaboration. The State Department does not have full visibility to pending I-485 cases at USCIS, nor information as to whether there are EB-2 upgrades or EB-3 downgrades pending for the same foreign national. Better interagency data sharing would allow the State Department to advance priority dates more quickly in some cases, and may have other benefits, such as preventing backlogs at the NVC, and avoiding phenomena such as that which occurred in the summer of 2007 with adjustment of status applications. Applying supply chain management principles to interagency engagement presents another opportunity to build upon the efficiencies already achieved.

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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 abahal@foxrothschild.com.