In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent 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” (April 16, 2017), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie offers his analysis of current trends and future projections for the various immigrant preference categories for the beginning of the next fiscal year (May 2017) and beyond.                                                                      

Check-in with DOS’s Charlie Oppenheim: April 16, 2017

FB-4 Worldwide. FB-4 Worldwide should be watched closely. Following aggressive movement of the final action date in April, this category is not expected to advance. The April movement seems to have stimulated applicants to take action, and increased demand may require a temporary retrogression in this category later this fiscal year. Should retrogression occur, the category would recover completely in October, the first month of the new fiscal year. The final action dates for all other family-based categories are expected remain stable.

EB-1 and EB-2 Worldwide. As noted in the May 2017 Visa Bulletin, EB-1 and EB-2 Worldwide demand at USCIS has increased dramatically over the past six weeks, signaling the possibility of a future correction to the final action date. Charlie explained that number usage in both of these categories for January and February was about 1,000 higher than earlier months and he expects that it will be at least that high, if not higher, in April. While this is positive in the sense that USCIS is clearing out and approving cases, it may limit the ability for the agencies to take final action on pending cases towards the end of the summer if a correction is required.

EB-1 India and China. Charlie has been predicting the imposition of a final action cut-off date for EB-1 China and India for several months and echoes that warning in the May Visa Bulletin. Charlie tells AILA that the only reason a final action cut-off date has not already been imposed is that thus far, India and China have been able to benefit from “otherwise unused numbers” not currently required for other countries. The use of “otherwise unused numbers” by these two countries will soon end in order to ensure that other countries who have not yet reached their EB-1 per country limit can remain “current.” The worldwide demand and heavy use of EB-4 and EB-5 numbers, which in earlier years had remained unused and had “fallen up” to EB-1, has resulted in the restriction of EB-1 number use strictly to those numbers available to that category on an annual basis.

Charlie predicts that a final action cut-off date will be imposed for EB-1 China and India no later than July. When that occurs, both countries will have the same final action date. While these categories will not technically become “unavailable,” the date that is imposed will effectively shut off the use of additional numbers.

EB-2 India. March demand for EB-2 India doubled from February. Based on this spike in demand, Charlie can no longer say with confidence that this category will recover to last year’s level. However, there may still be some room for the date to advance further, and based on current demand patterns, the absolute best case scenario would be for the final action date to reach December 2008. The wildcard factor is whether EB-3 upgrades will subside or continue at the same or faster pace. Charlie lacks visibility into EB-3 upgrade demand until a visa number is requested, and therefore cannot plan final action date movements with as much precision as he would like.

The China EB-3 Downgrade Phenomenon. The gap between EB-2 China and EB-3 China continues to widen in May, with EB-3 China advancing six months to October 1, 2014 and EB-2 China advancing less than one month to February 8, 2013. Consistent with this trend, AILA members should not expect any significant advancement in the final action date for EB-2 China this fiscal year. By contrast, we may continue to see a healthy advancement of EB-3 China until or unless the expected EB-3 downgrade phenomenon materializes.

Based on current data, Charlie predicts that the final action date for EB-2 China may advance as far as a date in spring or summer 2013 before the end of this fiscal year.

EB-4 Religious Workers and EB-5 Investors (I5 and R5). Both the EB-4 Religious Worker and EB-5 Investor Programs will sunset on April 28, 2017 unless reauthorized by Congress. As such, the May Visa Bulletin notes that both of these categories will be unavailable in May unless Congress acts. Should Congress reauthorize both programs, EB-4 will return to current with the exception of EB-4 El Salvador, Guatemala, Honduras and Mexico, which would be subject to a July 15, 2015 final action date. With regard to these countries, and despite healthy demand, Charlie maintains that it is still possible that the final action date may advance before the end of the fiscal year.

If the Investor Program is reauthorized, all countries except China would become current, with a final action date of June 1, 2014 for EB-5 China (I5 and R5).

You may access the May 2017 Visa Bulletin here, the April 2017 Visa Bulletin here, and the March 2017 Visa Bulletin here.

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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.