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” (March 18, 2019), reflecting his analysis of current trends and future projections for the various immigrant preference categories.
This month, Charlie’s comments on the first quarter of this fiscal year are limited due to insufficient data, but we look forward to more specific predictions on demand trends and date movement in the coming months.
Check-in with DOS’s Charlie Oppenheim: March 18, 2019
Data and Projections
Charlie bases Final Action Date movement on the performance of each category over recent months, as well as his visibility regarding employment-based cases pending at the USCIS National Benefits Center and those already forwarded to the local USCIS field offices.
Following an early April 2019 meeting at the National Benefits Center, Charlie will have additional data upon which to base the Final Action Dates in the May 2019 Visa Bulletin. If that data demonstrates shifts in the demand trends, Charlie may alter his projections for Final Action Date movements through the second half of the fiscal year.
Family-Based Preference Categories
Charlie advises to expect movements in the family-based preference categories consistent with those in recent visa bulletins. However, he cautions that consistent rapid forward movement in these categories is not likely to continue. Charlie remains concerned that the lack of apparent demand in many of these categories, which is causing the dates to advance more quickly than usual, may eventually result in a great amount of demand materializing all at once. If this were to occur, it could result in an abrupt retrogression and lead to volatility in some categories.
Charlie recalls that this phenomenon occurred in the family-based preference categories in Calendar Years (CY) 2009 and 2010 when the U.S. economy was lagging. This economic slowdown caused low demand for immigrant visas, which in turn, spurred rapid movement for family-based categories. As the economy improved, the demand for immigrant visas heated up abruptly, causing a dramatic retrogression during the second quarter of FY2011.
In particular, there has been unusually rapid movement in FB-3 and FB-4 Philippines, each of which advance six months in the April 2019 Visa Bulletin. The visa bulletin’s “Section D. Final Action Date Movement” on page 8 contains more details on Final Action Date movements.
Employment-Based Preference Categories
EB-1: Reported demand levels across all countries in the EB-1 category remain high, having changed since the “Visa Availability” projections were provided in Section E of the February 2019 Visa Bulletin on page 9. In absolute terms, EB-1 has used more total visa numbers this fiscal year than any other employment-based category, with usage up to 25% higher than that of EB-2, and EB-3. The increased demand for EB-1 Worldwide numbers is negatively impacting EB-1 China and EB-1 India, which in the past have normally benefitted from the availability of otherwise unused EB-1 numbers from other countries.
Charlie warns that there should not be an expectation of any movement for EB-1 China and EB-1 India Final Action Dates. Movement for both is only possible if EB-1 Worldwide demand slows down to a sufficient level that would allow otherwise unused numbers to be allocated to these countries. If the current demand trends continue, that is unlikely. For context, Charlie mentioned that EB-1 number use during January and February 2019 exceeded that of the entire first quarter of FY2019. From December to January, EB-1 Worldwide number usage increased by over 45%. In February, that number usage was slightly higher than December, but declined slightly overall. I t was still excessive, however, given that February is a short month. March is at least on par with the number usage that materialized in February 2019, indicating that the demand does not show signs of significantly decreasing at this time. Individuals should expect movement of anywhere from minimal movement to up to two months for EB-1 Worldwide Final Action Dates. Charlie is watching the demand trends in this category very carefully. He cannot yet conclude whether this elevated demand represents a bubble that will be processed and then quickly dissipate, or whether it represents an ongoing consistent demand trend.
EB-2 Worldwide: Charlie mentioned that only about half of the EB-2 Worldwide numbers for this fiscal year have been used, which is approximately where he would like that number to be. If the current demand trend continues, EB-2 Worldwide should remain current throughout the FY2019.
EB-2 and EB-3 India Remain Flipped: In the April 2019 Visa Bulletin, the EB-2 India Final Action Date once again advances only three days to April 12, 2009. EB-3 India remains ahead of EB-2 India, advancing a full month for a Final Action Date of June 22, 2009. While the same movement patterns are expected for the foreseeable future, individuals should continue to watch these two categories carefully. Since EB-2 Worldwide demand is on target to use, but not exceed its numbers this fiscal year, few, if any numbers can be expected to be left unused. Thus, there will likely not be any additional numbers available for EB-2 India use.
EB-2 and EB-3 China: In contrast to India, EB-2 China remains ahead of EB-3 China. In April 2019, EB-2 China advances three months to a Final Action Date of April 1, 2016, and EB-3 China advances three weeks to a Final Action Date of August 1, 2015. Like India, these trends are expected to continue for the foreseeable future.
EB-3 Philippines: Rapid advancement continues for EB-3 Philippines in April, as the category leaps forward three months for a Final Action Date of March 1, 2018. The rapid movement throughout the past year has covered most pending cases, and the current levels of new demand for this category are extremely low both overseas and at USCIS. Although a continuing lack of demand will create additional forward movement, individuals are cautioned to not expect this rapid advancement to continue indefinitely. If significant demand abruptly materializes, it can slow down advancement and even result in a retrogression. In last month’s check-in, Charlie addressed a similar demand pattern for EB-3 Philippines experienced in FY2014 and early FY2015.
EB-4: EB-4 El Salvador, Guatemala and Honduras advance one week to a Final Action Date of March 8, 2016, and EB-4 Mexico advances three months to a Final Action Date of April 1, 2018. Individuals should expect continued forward movement in EB-4 Mexico until this category reaches it per country limit, at which time its Final Action Date will match that of EB-4 El Salvador, Guatemala and Honduras. EB-4 El Salvador, Guatemala and Honduras may experience some additional movement in May or June 2019, though it will be minimal. Charlie mentioned that there is currently enough pending demand for this category. However, the category may advance later in FY2019 if it becomes apparent that there are available numbers. According to Charlie, EB-4 India is likely to reach it’s per country limit again in either August or September of FY2019. He expects that when this occurs the category will retrogress briefly, and then come current again on October 1, 2019.
EB-5: In the April 2019 Visa Bulletin, the Final Action Date for EB-5 China advances one week to September 15, 2014. In China, the Consulate in Guangzhou is trying to get scheduling up to speed following the recent periods in which the EB-5 I5 and R5 programs were not authorized. A decrease in the level of expected demand has been occurring for other countries. It is possible that applicants held off submitting documents while awaiting the reauthorization of EB-5 (I5 and R5) programs. Charlie expects the demand levels to increase again, as a result of the recent reauthorization. C harlie mentioned that EB-5 Vietnam has slightly less demand in the upcoming weekly groupings and is better positioned to advance, until the per-country annual limit is reached. The Final Action Date included in the April 2019 Visa Bulletin for EB-5 Vietnam is August 22, 2016. Charlie previously expected EB-5 India to reach it’s per country limit by July 2019. However, he is no longer certain that will happen. He is watching the demand data and should have a better sense of the number usage within a few weeks. The decline in demand mentioned above, possibly resulting from reauthorization concerns, makes it difficult for Charlie to estimate how many additional numbers may be used by “high demand” EB-5 countries.
Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance. Alka is situated in Fox Rothschild’s Morristown, 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.