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” (February 19, 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.
Check-in with DOS’s Charlie Oppenheim: February 19, 2020
The March 2020 Visa Bulletin calls out two key developments.
First, and consistent with Charlie’s prior predictions, a final action date of January 1, 2017 will be imposed in March for EB-3 Worldwide (including EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam), as well as for the EB-3 (EW) Other Workers category for these countries. No forward movement is expected in these categories in the foreseeable future. Charlie anticipates that USCIS could revert resources that were previously allocated to EB-3 processing to EB-2 and/or EB-1 processing, generating additional demand in those latter categories. Charlie will watch movements in these categories closely and will likely refrain from posting updated projections until either the May 2020 or June 2020 Visa Bulletin.
Second, the final action dates for EB-5 China for both Non-Regional Center (C5 and T5) and Regional Center (I5 and R5) will advance 4.5 months in March to May 15, 2015. Despite the significant number of applicants who are eligible to respond to NVC’s requests for information, EB-5 China applicants are not becoming documentarily qualified in a timely manner. Charlie emphasizes that the lack of demand and the decision to advance the final action date predates the novel coronavirus outbreak. He noted, however, that moving forward, the recent, temporary closure of the U.S. Consulate in Guangzhou will impact EB-5 China number usage, with the exact impact being unknown and tied to the duration of the closure. As this situation is fluid, Charlie cautions against speculating as to what impact this might have on the EB-5 China final action date.
Employment-based Preference Categories
EB-1: In March EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines and Vietnam) advances three months to March 1, 2019. It remains possible that this category could become current in the summer of 2020. If demand levels remain steady, there may be sizeable advancement in April in EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam). However, it is also possible that this category could advance less quickly if USCIS shifts resources previously used to adjudicate EB-3 cases to EB-1 processing, thus increasing the demand. After holding steady, the final action dates for EB-1 China and EB-1 India start to advance again in March, with EB-1 China advancing one week to June 1, 2017 and EB-1 India advancing two months to March 1, 2015.
EB-2: EB-2 Worldwide (including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines and EB-2 Vietnam) remains current in March, but Charlie continues to monitor demand closely. Based on current demand patterns, retrogression in EB-2 Worldwide will be required no later than June 2020 and possibly as early as April 2020. EB-2 China advances one month in March to August 15, 2015, and EB-2 India advances three days to May 22, 2009.
EB-3: A final action date of January 1, 2017 is being imposed in March for EB-3 Worldwide (including EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam) and EB-3 Other Workers Worldwide (including EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam). EB-3 China advances seven weeks to March 22, 2016 in March and EB-3 China Other Workers advances one month to June 1, 2008. This places EB-3 China’s final action date more than seven months ahead of EB-2 China. Charlie is starting to see some downgrades from EB-2 to EB-3, but not yet in large numbers. EB-3 India and EB-3 India Other Workers advance one week to January 15, 2009 in March.
EB-4: Following a hold, the final action dates for EB-4 Mexico and EB-4 El Salvador, Guatemala and Honduras start to advance again in March 2020, with EB-4 Mexico advancing 1.5 months to November 15, 2017, and EB-4 El Salvador, Guatemala and Honduras advancing 2 weeks to July 15, 2016. Worldwide EB-4 demand is higher relative to what it was last year at this time. EB-4 Mexico will continue to advance until it reaches its per country limit, at which time its final action date will track that of EB-4 El Salvador, Guatemala and Honduras. EB-4 El Salvador, Guatemala and Honduras demand has tapered off over the last one to two months, dropping under the per country limit for this point in the fiscal year, which allowed for the limited movement in the date. Charlie will continue to monitor the demand trends carefully.
EB-5: As noted above, EB-5 China number usage is down dramatically, causing the final action date to advance 4.5 months to May 15, 2015. The pace of advancement in EB-5 India slows to three weeks, giving it a final action date of October 22, 2018 for March. In contrast, EB-5 Vietnam advances one month, giving it a March 2020 final action date of January 15, 2017.
Family-based Preference Categories
The combined demand at USCIS and the U.S. Consulate in Ciudad Juarez has loosened up a bit for the Mexico family-based categories, allowing some room for advancement in March. The advancement ranges from two weeks to one month in all categories (except F2A Mexico which is already current).
Charlie is amazed that the demand levels in the Philippines family-based categories continue to remain very low. All Philippines family-based categories (with the exception of F2A Philippines which is current) will advance 5 months in March. Charlie cautions AILA members that the recent pattern in F4 Worldwide may eventually repeat itself in the Philippines family-based categories. Due to low demand levels in F4 Worldwide, Charlie rapidly advanced the final action date throughout FY19. When F4 Worldwide demand finally materialized in the Fall of 2019, it eventually caused the seven-month retrogression in the final action date which is expected to hold for the foreseeable future. A similar phenomenon is possible with regard to the Philippines family-based categories, should heavy demand finally start to materialize.
All F2A categories remain current for March. Although there was a temporary two-month surge in demand, it has now subsided. If this low demand trend continues, it is possible that a final action date may not need to be imposed as previously thought. When F2A became current in July 2019, there were over 89K applicants with 2017 priority dates. On November 1, 2019 there were 182K F2A applicants with petitions on file at the National Visa Center, and the category was “current”. It is unclear why these applicants are not seeking final action on their applications. Charlie will continue to watch the demand trends carefully.
F2B demand looks relatively steady across categories, with number usage right on target for where they should be at this time in the fiscal year.
The final action date for F4 Worldwide (including F4 China) holds at July 1, 2006 for March. Charlie does not see advancement in this category in the foreseeable future. However, there may be some hope for movement in this category in the second half of the fiscal year. In March F4 India advances two weeks to December 8, 2004, F4 Mexico advances one month to February 15, 1998, and as noted above, F4 Philippines advances five months to December 1, 1999.
Q&A: Employment-based Preference Categories
Question: It appears that EB-3 worldwide is retrogressing to Jan. 1, 2017 on March 1. Do you have any predictions on movement forward of EB-3 for rest of the year?
Answer: No movement in the foreseeable future.
Question: Whether, when, and to what extent (if any) do you predict forward progress in final action dates and filing action dates for the EB-4 categories related to El Salvador, Guatemala, and Honduras? You predicted some months ago that we should expect little to no movement in these categories through the second quarter of FY2020. Do have more detailed information of what is likely to transpire in and beyond April 2020?
Answer: The date for the three countries moved slightly for March and is unlikely to move again prior to June.
Question: Mexico FB4 has been hovering around the Jan. 14, 1998 date (the first 245(i) cutoff so there are many cases with priority dates in that time frame). At one point, it advanced to Feb. 7, then retrogressed, and now has advanced to Jan. 15, 1998. Can Charlie please give some information about the status of demand for those numbers and the pace at which he expects it might advance?
Answer: The date advanced several weeks for March, and future movement might average up to two weeks.
Question: The February Visa Bulletin showed Rest of World (ROW) EB3 as current. Philippines EB-3 actually moved forward by a few months. While there was a note in the January Visa Bulletin indicating that Worldwide (WW) demand was spiking, what happened in the last 30 days to prompt the DOS to essentially shutdown the EB-3 category for all but China and India?
Answer: The high level of demand had been occurring for a period of several months, prompting the notes in both the January and February Visa Bulletins. Sometimes initial high demand patterns will change after a period of many months, returning to an acceptable level which is within the targeted number use total. Once it became apparent that the demand pattern was not showing any signs of a decline it became necessary to take corrective action to limit number use.
Question: It seems certain that the Adjustment of Status (AOS) processing time will slow down with the implementation of the public charge rule. To what degree was this taken into consideration with the Visa Bulletin? Or was that information too new to be factored into the March Visa Bulletin?
Answer: It is too early to determine if there will be any impact. It is important to remember that the determination of the dates is made in an attempt to make all numbers available for potential use under the respective annual limits.
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.