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” (September 13, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.
This month, Charlie comments on the close of this fiscal year and the recovery in certain categories at the start of FY2019, provides his predictions on final action date movement in the coming months, and answers questions from the public.
Check-in with DOS’s Charlie Oppenheim: September 13, 2018
On September 14, 2018, USCIS announced that it would accept adjustment of status applications based on the “Dates for Filing” chart for both family-based and employment-based cases. Since Charlie sets the “Dates for Filing” based on where he expects the final action dates will be in the next 8 to 12 months, these charts are also helpful in understanding how far the final action dates are likely to advance in the near term.
Family-Based Preference Categories
Since most family-based cases are processed at Embassies/Consulates, Charlie’s visibility into family-based demand is good, which avoids dramatic fluctuations in the final action dates. These categories are expected to advance modestly or hold steady, except Mexico. Given lower than anticipated demand members may see the Mexico family-based categories move more rapidly than normal. Demand from China continues to be relatively low, whereas India demand has rebounded over the past year.
Employment-Based Preference Categories
EB-1: For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017. Charlie remains pessimistic that the EB-1 Worldwide final action date will advance before the end of this calendar year. He forecloses the possibility of advancement in November and is pessimistic that there will be advancement in December but notes that there will be some forward movement in all EB-1 categories after the beginning of 2019. Demand is sufficiently high that Charlie is unable to predict at this time whether this category will become current in FY 2019. Charlie does not expect any advancement of EB-1 China or EB-1 India before January 2019 and believes it is “almost guaranteed” that both categories will be subject to a final action date through the fiscal year.
EB-2 and EB-3 Worldwide: As previously predicted, EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year. Charlie has not seen expected growth in EB-3 Worldwide.
EB-2 China and EB-3 China: While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015. It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand. If there are not as many downgrades, EB-3 China could advance more rapidly than expected. Charlie has no visibility into EB-3 China “downgrade” demand until a visa number is requested, so this category may move modestly to avoid future retrogression.
EB-2 India and EB-3 India: EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009. Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.
EB-3 Philippines and Other Workers Philippines: As predicted, EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Nnly minimal movement during the first quarter of the fiscal year is expected.
EB-4: As predicted, EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October. There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1. Due to visibility into preadjudicated cases filed prior to the imposition of a final action date in May 2016, as well as potential future demand by cases with old priority dates, Charlie is moving this category conservatively to avoid a future retrogression.
EB-4 India: It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.
EB-5 Non-Regional Center: for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.
EB-5 China: Demand remains high, so members should not expect much movement in this category throughout the fiscal year. EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.
Expiration of Two Visa Categories
Unless reauthorized by Congress, the EB-4 Religious Worker and EB-5 (I5 and R5) categories will be unavailable after September 30, 2018. If Congress reauthorizes these programs, the EB-4 Religious Worker category will become current in October, except EB-4 El Salvador, Guatemala and Honduras which will have a final action date of February 15, 2016 and EB-4 Mexico, which will have an October 22, 2016 final action date. If reauthorized, EB-5 Worldwide (I5 and R5) would become current, with EB-5 China (I5 and R5) subject to an August 15, 2014 final action date, and EB-5 Vietnam (I5 and R5) subject to a January 1, 2016 final action date.
QUESTION: USCIS data from July 2018 indicates that there are only 473 pending applications for EB-3 India. USCIS notes that this is for service centers only and doesn’t include field offices. The number of EB-3 China cases is 161. Do these numbers track to the information DOS is receiving from USCIS about pending demand?
CHARLIE’S RESPONSE: As these are USCIS statistics, I would suggest that you pose your question to USCIS. However, I am told that the Service Centers have dramatically reduced their inventories as pending adjustment cases which were filed years ago have become current and were approved, and new cases are now being sent to field offices via the National Benefits Center (NBC). If I were to speculate, the numbers posted likely represent only India and China cases that were pending and subject to a priority backlog on March 6, 2017, when USCIS started sending new cases to the NBC. Therefore, it should be expected that the number of cases at the NBC and the field offices far exceeds those which remain at the Service Centers.
QUESTION: Can you explain why sometimes final action dates are the same for different countries in a certain preference category and why sometimes they are different?
CHARLIE’S RESPONSE: Whenever the total number of documentarily qualified applicants for an individual country or category exceeds the supply of numbers available for a particular month, it is considered to be “oversubscribed” and a final action date is established. The final action date is the priority date of the first documentarily qualified applicant who cannot be accommodated for a visa number. For example, if the monthly allocation target for the China and India EB-2 preference categories were 250, and each country had demand in excess of 500, a final action date would be established so that only 250 numbers would be allocated. In this case, the final action date for each country would be the priority date of the 251st applicant. That date could be widely different based on EB-2 demand patterns for each country.
QUESTION: Using the EB-1 patterns we have observed over the past couple of years as an example, can you explain how “otherwise unused” numbers are allocated?
CHARLIE’S RESPONSE: Section 202(e) of the INA says that if there are “otherwise unused” employment numbers under the respective Worldwide preference limit, such numbers may be made available to those countries which have already reached the per-country preference limit. In the past, EB-1 has been listed as “Current” for all countries for at least the first six months of each fiscal year because the worldwide level of demand at that time was insufficient to use all numbers available under the annual limit. However, the “otherwise unused” numbers situation is constantly monitored, and subsequent changes in demand patterns can negatively impact the availability of future numbers to countries which had previously benefitted from their use. Such increases in EB-1 Worldwide demand later in the year have eventually required the imposition of a final action date for EB-1 China and India to allow other countries that had not yet reached the per-country limit to remain “Current.” Any remaining unused numbers are then made available strictly in priority date order without regard to country, and a single date would be applied. That has been the case in past years when it has been necessary to apply a final action date to govern the use of a more limited amount of unused numbers (or none) available for use by China and India EB-1 applicants. This is the reason why the October China and India EB-1 date is earlier than the Worldwide date, with both being required to govern number use within the overall annual limit.
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://www.foxrothschild.com/alka-bahal/