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 26, 2018), 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:  February 26, 2019

Noteworthy Movements in March

The February 2019 Visa Bulletin listed projections for Final Action Date movements through May 2019 were all fulfilled, with the exception of EB-5 Vietnam, which was projected to move only 3 weeks, but actually advanced by one month for March. Members are reminded that when the projected movement is “up to” a particular amount of time, it means that movement should be interpreted as a range of movement per month between zero and the outer limit of said range from the present through May of 2019.

Employment-Based Preference Categories:

EB-1:  As predicted, there is only modest movement of one month for the EB-1 Worldwide Final Action Date in March, from December 1, 2017 to January 1, 2018. Similarly, the Final Action Dates for EB-1 China and EB-1 India creep forward only three weeks from February 8, 2017 to February 22, 2017.

Charlie underscores that AILA members should expect EB-1 to move at the lower end of the projected range of 0-2 months for EB-1 Worldwide and 0-1 months for EB-1 China and EB-1 India. Based on the continuing high demand, “minimal if any’ movement in the EB-1 categories is expected, and especially in EB-1 China and EB-1 India. The level of demand received after the publication of the projections in the February 2019 bulletin increased by over 50 percent during January, and the level received during the first three weeks of February exceeds that received during all of February 2018.

India EB-2 and EB-3 Remain Flipped:  The EB-2 India Final Action Date advances only three days to April 9, 2009 in March, whereas the Final Action Date for EB-3 India, which was already ahead of EB-2 India in February, advances a full month to May 22, 2009. Although the possibility of this inversion was hinted at for some time, this phenomenon only occurred in February 2019, so it is too soon to know if EB-2 downgrades will be filed, and if so, how that might impact the relative Final Action Dates between these two categories.

EB-2 and EB-3 China:  The Final Action Date for EB-2 China remains ahead of EB-3 China, and continues to advance at a faster rate, with EB-2 China advancing three months to January 1, 2016 in March, and EB-3 China advancing only one week to July 8, 2015 for March. Given the projected advancements and barring any changes in the demand trends, members can expect this to continue for the foreseeable future.

EB-3 Philippines:  Demand in this category continues to remain below the targeted level, requiring the Final Action Date for EB-3 Philippines to advance 4 months to December 1, 2017, in an attempt to generate demand.

Charlie is concerned that this rapid advancement might reflect a similar demand pattern to what this category experienced in FY2014 and early FY2015. At that time, the demand was similarly low. As such, the Final Action Date rapidly advanced. In the Spring of FY2015, a surge of demand in this category resulted in number use during a three-month period, equaling that of the entire previous year, requiring a more than 7-year retrogression in the Final Action Date for EB-3 Philippines. The FY2015 Final Action Date had, at one point, reached October 2014 for April. By May 2015 it retrogressed to July 2007, and ultimately ended the year at December 2004. The drastic retrogressions were required to stop all number use once the limit was reached, and it took many years to fully recover to the October 2014 date.

While Charlie is cautious about advancing the Final Action Date too quickly to avoid a reoccurrence of this type of retrogression, he cannot avoid advancing it where he does not see sufficient demand to meet the per country limit.

EB-4:  The Final Action Date for EB-4 El Salvador, Guatemala and Honduras holds at March 1, 2016 in March, and EB-4 Mexico advances 4 months to January 1, 2018.

EB-5:  EB-5 China advanced the Final Action Date by one week to September 8, 2014 for March. The Final Action Date had previously been advanced in January in anticipation of the Chinese New Year but processing was limited due to the sunsetting of the EB-5 I5 and R5 programs until very late in the month. Guangzhou is working to process as many cases as it can in February, but these may spill into March. EB-5 Vietnam has less demand with early priority dates and as such reaches a Final Action Date of July 15, 2016.

Family-Based Preference Categories:

FB-3 Mexico:  The Final Action Date for FB-3 Mexico, which has remained the same for the last few months, advanced slightly by 3 weeks in March to January 15, 1996. This movement was made possible by a decline in demand for cases being processed at Ciudad Juarez. Charlie did want to note that there is a potential for higher levels of demand pending final action at USCIS.

FB-3 Philippines and FB-4 Philippines:   Both FB-3 and FB-4 Philippines Final Action Dates advanced by more than 4 months and 3 months respectively in March. This reflects continuing low demand in these categories, despite a very large “pool” of applicants with approved petitions that have not yet acted on their case.

Program Reauthorizations and Timing of Visa Bulletin Issuance:

The Department of State published its March 2019 Visa Bulletin prior to President Trump signing into law the Consolidated Appropriations Act, 2019, which reauthorized the EB-4 Religious Workers (SR) and EB-5 (I5 and R5) categories. Members should refer to section D on page 8 of the March 2019 Visa Bulletin for the dates applicable to the EB-4 SR and EB-5 (I5 and R5). Specifically, in March, EB-4 SR is current for all countries except EB-4 SR El Salvador, Guatemala and Honduras, which have a Final Action Date of March 1, 2016, and EB-4 Mexico, which has a January 1, 2018 Final Action Date. EB-5 (I5 and R5) are current in March for all countries except EB-5 (I5 and R5) China-mainland born, which is subject to a September 8, 2014 Final Action Date, and EB-5 (I5 and R5) Vietnam, which is subject to a July 15, 2016 Final Action Date.

Changes to Methodology for Setting Application Filing Dates in the Family-Sponsored Categories:

As mentioned in prior columns, the Application Filing Dates (“Dates for Filing”) are a projection of where Charlie expects the Final Action Date to be about 8-12 months in the future. While this will continue to be the case regarding the Employment-Based (EB) Dates for Filing, the Dates for Filing in the Family-Sponsored Categories are being adjusted to more closely reflect where Charlie expects the Final Action Date to be within 3-6 months.

You may access the February 2019 Visa Bulletin here and the March 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.