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” (July 21, 2020), reflecting his analysis of current trends and future projections for the various immigrant preference categories and his answers to various questions from the public.
As posts and USCIS will not be processing as many immigrant visa (IV) and adjustment of status applications due to the closures and suspension of services due to the coronavirus, we are in a unique, unexpected situation.
Check-in with DOS’s Charlie Oppenheim: July 21, 2020
Given reduced processing capacity occasioned by the COVID-19 pandemic, the Department of State and USCIS are closely collaborating to maximize number usage for FY20, focusing on processing capacity and the applications that are capable of being finalized this fiscal year. There continues to be forward movement in all family-based preference categories and in most employment-based preference categories in August, with the exception of EB-2 India, EB-4 El Salvador, Guatemala and Honduras and EB-4 Mexico, which hold at their July dates (July 8, 2009, April 1, 2017 and June 15, 2018 respectively). In particular, there is rapid advancement in the EB-1 and EB-3 categories. There is insufficient time for new I-485 filings resulting from these advancements to be processed to completion before the end of the fiscal year. These movements were instead motivated by a desire to convert pre-adjudicated demand at USCIS into immigrant visa issuance prior to October 1, 2020.
Processing capacity has been dramatically diminished at consular posts, and USCIS normally processes about eighty-five percent of the Employment-based immigrant visa numbers each fiscal year. Following imposition of final action dates on EB-1 China and EB-1 India, USCIS continued to process these applications, and in many cases, even conducted interviews before the pandemic hit. Thousands of these applications can potentially be finalized following a renewed security check and/or upon receipt of a medical exam, thus enabling the employment-based annual limits to be reached or approximated as closely as possible. If a furlough of USCIS employees occurs as planned in early August, it could have a significant negative impact on the government’s efforts to maximize immigrant visa number usage for FY20. [Note that as of the publication of this article, the potential furlough of UCSIS employees has been postponed until August 31, 2020.]
Employment-based Preference Categories
EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) remains current in August and will continue to be so through the end of this fiscal year.
In August the final action date for EB-1 China leaps forward 4.5 months from August 22, 2017 to February 8, 2018. EB-1 India continues to advance rapidly but at the slightly slower pace of nine months in August, from May 8, 2017 to February 8, 2018. AILA members may notice that EB-1 China and EB-1 India now have the same final action date. This is because they have both reached their per country limits and are now utilizing “otherwise unused numbers” from the EB-1 category as well as numbers that have “fallen up” from otherwise unused EB-5 numbers. Otherwise unused numbers are available within the EB-1 category because the rest of world demand is currently insufficient to fully utilize numbers under the Worldwide limit this fiscal year. While there is still potential for forward movement in EB-1 China and EB-1 India in September, any advance movements are unlikely to be as dramatic as in August.
EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) remains current in August and will remain so through this fiscal year. EB-2 China advances approximately nine weeks from November 8, 2015 to January 15, 2016. In contrast, EB-2 India holds at July 8, 2009 in August. It is currently estimated that there is a sufficient amount of worldwide demand to reach or approximate the EB-2 annual limit for FY2020.
EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) continue to advance rapidly at the pace of almost one year in August from April 15, 2018 to April 1, 2019. This advancement includes over three thousand EB-3 Philippines applications which are eligible to be finalized. EB-3 China leaps forward more than seven months in August from June 22, 2016 to February 15, 2017. EB-3 China Other Workers advances modestly from July 22, 2008 to August 1, 2008. The spread between EB-2 China and EB-3 China, which held at approximately 7.5 months for some time, widens greatly in August, putting EB-3 China’s final action date 13 months ahead of EB-2 China. We will have to monitor this to see whether this spurs downgrades to EB-3 China. EB-3 India and EB-3 India Other Workers both advance four months in August from June 1, 2009 to October 1, 2009.
EB-4 Worldwide (including China, India, Philippines and Vietnam) remains current in August and likely to remain so for the foreseeable future. EB-4 El Salvador Guatemala and Honduras advances two months in August from February 1, 2017 to April 1, 2017, while EB-4 Mexico continues to hold at June 15, 2018.
As predicted, EB-5 India (Regional and Non-Regional Centers) which became current in July, continues to will remain current in August and is expected to remain so for the foreseeable future. EB-5 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines), Regional and Non-Regional Centers, will also remain current into the next fiscal year. EB-5 China (Regional and Non-Regional Centers) advances two weeks in August, from July 22, 2015 to August 8, 2015. EB-5 Vietnam (Regional and Non-Regional Centers) advances two months and one week, from May 15, 2017 to July 22, 2017, with the hope that this will maximize number usage in this category.
Family-based Preference Categories
Recent advancements in the family-based preference categories have resulted in the accumulation of large amounts of demand and may result in a slow-down in advancement of the family dates, as there has been limited processing capacity to finalize these applications.
F2A remains current in August across countries and is expected to remain so in September and October. All other Philippines family-based preference categories advance three months in August, due to a very low response rate and despite rapid advancement over the past eighteen months. In August, F1 Philippines advances to September 1, 2011, F2B Philippines advances to April 1, 2011, F3 Philippines advances to November 15, 2001, and F4 Philippines advances to September 1, 2001. Family-based preference categories for all other countries will continue to advance at a pace of two to five weeks in August.
F1 Worldwide (including F1 China and F1 India) advances five weeks from July 8, 2014 to August 15, 2014. F1 Mexico advances two weeks from December 8, 1997 to December 22, 1997.
F2B Worldwide (including F2B China and F2B India) advances five weeks in August from May 1, 2015 to June 8, 2015. In August, F2B Mexico advances two weeks from March 8, 1999 to March 22, 1999. F3 Worldwide (including F3 China and F3 India) again advances three weeks in August from May 8, 2008 to June 1, 2008, and F3 Mexico advances one week from July 8, 1996 to July 15, 1996. F4 Worldwide (including F4 China) again advances two weeks in August from August 22, 2006 to September 8, 2006. F4 India also advances at a pace of two weeks from February 8, 2005 to February 22, 2005. F4 Mexico advances two weeks from June 1, 1998 to June 15, 1998.
Diversity Visa Lottery
AILA also notes that the limitation of immigrant visa processing to mission critical matters, coupled with the impact of Presidential Proclamation 10014, the validity of which was extended by PP 10052 through December 31, 2020, will result in large numbers of FY2020 DV lottery winners being unable to process immigrant visas by the end of FY20.
QUESTION: I’m confused by the recent Check-Ins. About two months ago I asked the reason for the rapid advancement in China EB-5 considering that consulates were not issuing visas and it was unlikely that USCIS would process and adjudicate newly submitted AOS applications before the end of the fiscal year. Charlie said that it was because applicants were not responding to NVC and completing the consular processing steps in a timely manner and also because USCIS had told him they could process a certain number of AOS cases prior to the end of the fiscal year.
ANSWER: My comments were valid at the time; 1) at that time the dates were being moved to try and stimulate future responses, despite our not being able to process cases at this time, but it was hoped processing might be resumed later in the summer. Plus, the applicants had not been responding in great numbers based on recent movement of the dates, and it can be many months from the time an applicant begins submitting documents, and they are finally fully ready for the scheduling of an interview. 2) I knew that USCIS had hundreds of potential applicants who could be processed based on the movement of the dates. That could allow numbers to be used this year, which had it not been for the movement would have required those applicants using numbers under the FY 2021 limit.
QUESTION: However, at the most recent check-in, he says basically what I was saying, that the advancement in the cut-off dates was superficial since the visa numbers weren’t being used at all due to the pandemic cutting off IV interviews and USCIS processing of AOS applications. If he now thinks that way, what is the reason behind the advancement of China EB-5 by two weeks instead of say, none or one week? If, according to him, there is no USCIS pending demand for EB-5 numbers, then what did he mean in the previous check-in when he said USCIS told him they could adjudicate new cases? Has USCIS changed its opinion on its capacity?
ANSWER: By last month’s check-in three things had become apparent; 1) it was unlikely that overseas processing of such applicants would return to normal this fiscal year, 2) we already had over 3,500 China EB-5 applicants who would be eligible for potential interview once posts are able to return to full operational status, and 3) future movement of the date would not have any impact on this year’s USCIS number use. Therefore, I have limited movement of the China date for now, allowing me to get a better understanding of what impact past movements are having, and what the true need for numbers is likely to be under the FY 2021 EB-5 limit.
QUESTION: I’m also surprised by his comments that EB-5 applicants are not completing the CP steps. We have a large number of EB-5 China clients with processing complete letters from NVC and no interview notices, even before the pandemic began. Is there communication between Charlie and the consulates regarding interviews and the number they are conducting each month to ensure visa numbers are being used throughout a fiscal year?
ANSWER: There is no problem with communication. I have not said I didn’t have applicants who were documentarily qualified and eligible for scheduling. What I had been saying is that (at the time) we didn’t have enough of them based on the expected availability of China numbers, and that there were significant amounts of China applicants who had not been submitting all of the required documents despite being notified to do so. Since I began making those statements to AILA, IIUSA, and others the response rates have improved. Plus, if it were not for the fact that the COVID issues which have prevented current processing, we would have insufficient China EB-5 demand as we enter FY 2021.
QUESTION: We understand that the recent proclamation that seeks to “normalize” Hong Kong will effectively cause Hong Kong born persons to become chargeable to Mainland China. Please confirm whether we should act consistent with Hong Kong persons being chargeable under the Worldwide/All Chargeability Areas Except Those Listed until or unless advised otherwise.
ANSWER: I cannot comment on the Hong Kong issue at this time. The Executive Order (EO) provide 15 days to “commence all appropriate actions” to implement, and the issue is currently being reviewed. Please monitor the travel.state.gov web site for the latest guidance on this issue.
NOTE FROM AILA: During the DOS Open Forum at AC20, AILA asked whether the July 14, 2020 Executive Order on Hong Kong Normalization would result in Hong Kong born individuals becoming chargeable to Mainland China. David Newman, Director of Legal Affairs in the Visa Office, indicated that the Visa Office is still reviewing this matter, but that Section 103 of IMMACT90 granted separate chargeability treatment to Hong Kong born individuals and that the proclamation does not alter this.
You may access the July 2020 Visa Bulletin here and the August 2020 Visa Bulletin here.
Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance. Ms. Bahal is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Ms. Bahal at (973) 994-7800, or firstname.lastname@example.org.