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” (August 16, 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’ Charlie Oppenheim:  August 16, 2019

UPDATE:  Following determination of the dates listed in the September 2019 visa bulletin, the EB-3 category has become unavailable and will remain so through the end of this fiscal year. This includes not only EB-3 China and EB-3 India, but the entire category, including EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam.  Charlie had identified this possibility on page 8 of the September visa bulletin when he stated that “(i)t is likely that corrective action will also be required for other preferences prior to the end of the fiscal year.”  Additionally, Charlie has cautioned that, similar to EB-3, an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if the level of demand results in those annual limits being reached prior to the end of the fiscal year.

The fact that demand has resulted in various annual limits having been reached is not a surprise to Charlie and is his goal each year.  What is unexpected is that it is happening much sooner than expected. Prior to FY-2018 if such action were required it had normally occurred in September, and the FY-2018 issues could be attributed to the changes in USCIS processing of employment cases.

At a macro level, the fact that there may be a need to limit/cut-off future use of numbers is a positive situation to the extent that it means that all of the numbers available under the applicable annual limits will have been used. However, for individual applicants in which the ability to immediately file for Adjustment of Status is critical to remaining in the U.S., the retrogression may have significant negative impact.

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Family-based Preference Categories

As has been the case for the past few months, the F2A Final Action Date will remain current across categories for September 2019. Fairly sizeable USCIS demand in the FB Mexico preference categories continues.  The continued lack of significant demand in the FB Philippines preference categories has resulted in artificially rapid movement in those final action dates. This continues to be done to maximize number use under the various annual limits.  Apart from Mexico, there seems to be lack of interest in the family-sponsored preference categories based on the failure of applicants to act on their case in timely manner.  As we move into the next fiscal year, expect movements in the family-sponsored preference categories that are consistent with what we have seen in FY2019; until the demand patterns sufficiently improve.

Employment-based Preference Categories

EB-1:  As we enter FY2020, expect to see the EB-1 categories continue to be separated into three different Final Action Dates-one for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam), two others for EB-1 China and EB-1 India respectively.  Charlie does not expect any of the EB-1 categories to become current at any time in the foreseeable future.  Charlie is hesitant to predict what the Final Action Dates will be in the EB-1 categories for October.  While he hopes the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover.  However, regarding EB-1 India, which is now unavailable, Charlie is confident that it will not recover in October and may not do so for the foreseeable future.

In September 2019, EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) advances 15 months, from July 1, 2016 to October 1, 2017. The reason these categories were able to advance is that the heavy surge in USCIS demand for that began in mid-May through early July 2019 did not persist. Not only did this demand not persist, but the return of unused EB-1 numbers from consular posts abroad provided additional room to allow the advancement of these categories.

In contrast, EB-1 India has become unavailable due to continued high demand, which resulted in full use of its numbers for FY19. The pent-up demand that will continue to accrue for the 6 weeks that this category remains unavailable will further delay the category’s ability to recover.  EB-1 China demand remains strong, resulting in a retrogression of 2.5 years in the September visa bulletin to January 1, 2014 in order to limit any use of numbers for the remainder of the year.

EB-2:  EB-2 Worldwide (including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines,and EB-2 Vietnam) advances one year to January 1, 2018, while EB-2 India inches forward 6 days to May 8, 2009.  EB-2 China holds at January 1, 2017 for September 2019. Like EB-1 Worldwide, the movement for EB-2 Worldwide is due to the lessened demand and additional room made available after consular posts returned unused numbers.  Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide, including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines, and EB-2 Vietnam) will be able to recover to current in either October or November 2019.

EB-3:  Charlie is unable to say when the Final Action Dates for EB-3 Worldwide, EB-3 El Salvador, Guatemala, Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam, will once again become current.  While it is possible that this could occur in October 2019, it might also take longer.  Charlie hopes that there can be rapid recovery for EB-3 India, which also retrogressed earlier, over a period of several months. However, a timeline for recovery is not guaranteed.

Already scheduled USCIS interviews may continue in USCIS’ discretion for all categories that have either retrogressed or become “unavailable”. If the application is approvable, rather than receiving a visa number immediately, USCIS’ request for a visa number will be placed in Charlie’s pending demand file and will be authorized for use once the Final Action Date advances beyond the applicant’s priority date. Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner without the volatility which has been experienced.  For September 2019, EB-3 China Other Workers holds at November 22, 2007.

EB-4:  The entire EB-4 category is “Unavailable” for September, and that status has already been imposed during August 2019.  Charlie discussed demand resulting from an increase in decisions for Special Immigrant Juvenile (SIJ) cases in June 2019.  The result of these decisions being a significant and unexpected increase in demand for June and July 2019.  Charlie mentioned that had this unexpected increase in demand not happened, it would have been possible to allow most EB-4 categories to be listed as “Current” for the month of September.

Diversity Visa Lottery

All categories will be current for September.  To the extent that the winners are eligible and had promptly submitted their documentation and timely responded to any inquiries from the Kentucky Consular Center (KCC) and/or the post in order to be scheduled for interview, they should be able to receive their immigrant visas by the end of September.  Any such cases not finalized and approved by close of business (COB) September 30, 2019 will no longer be entitled to status or eligible to receive DV immigrant visas.  Since 1999, 5,000 DV numbers were offset to support the NACARA program. As there are very few remaining NACARA matters, going into 2020 the vast majority of these previously diverted 5,000 numbers will once again be available for the DV program usage.

You may access the August 2019 Visa Bulletin here and the September 2019 Visa Bulletin here.

 

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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 abahal@foxrothschild.com.