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.

___________________________

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.

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” (December 17, 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: December 17, 2018

Final Action Date Movements Largely Track Those of Q1 FY2019

With only modest movement in the employment-based preference categories for the first quarter of the fiscal year, we were hoping to see more dramatic forward movement in some of these categories starting with the January 2019 Visa Bulletin.  However, movement tracks similarly to what we experienced during the first quarter.

As of now, Charlie does not have sufficient data to know whether the current demand trend will continue into January so he is unable to comfortably predict final action date movements in the near term.  While Charlie initially hoped to publish specific projections in the January Bulletin, he now expects to publish projections in the February Visa Bulletin.

Since final action dates in several employment-based categories retrogressed during the final months of FY2018, demand in the first quarter was generally high across these categories, and applications which were unable to be processed for a few months are now coming through the pipeline.  Charlie is concerned that demand data may be artificially high and not reflect the true level of future demand.  He will continue to cautiously monitor demand levels over the next few weeks to assess whether this is a true trend and will make predictions accordingly.

Strike While the Iron is Hot!

It has been fortunate that USCIS has decided to accept adjustment of status applications based on the “Dates for Filing” through the first quarter of FY2019. It is Charlie’s understanding that USCIS will announce as early as Monday, December 17, that it will continue to follow the Dates for Filing for applications in January, but that the Final Action Dates may apply as early as February after that.  (Editor’s note: USCIS’ site on dates of filing appears to continue to track the dates for filing in the January 2019 DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS.   Therefore, applicants wishing to take advantage of the more liberal “Dates of Filing” should do so while that window of opportunity is open.  Interestingly, for both EB-3 China and India, the Dates for Filing for surpass those for EB-2.  This creates the potential for downgrade filings which may not be available after January.

Note: As always, as final action date movements can be unpredictable, it is critical for clients to file their applications to adjust status or to respond to the NVC Agent of Choice letter as soon as they are eligible to do so.

Programs that Will Sunset if Not Reauthorized

The EB-4 Religious Workers (SR) and EB-5 categories (I5 and R5) will sunset on December 21, 2018 unless reauthorized by Congress.  They are therefore listed as unavailable for January 2019.  The Visa Bulletin lists the final action dates that will apply to these categories, should they be reauthorized.

National Visa Center Filing Statistics Released

The January Visa Bulletin cites to an NVC report of immigrant visa applicants for both family-based and employment-based preference categories that were registered at the NVC as of November 1, 2018.

You may access the December 2018 Visa Bulletin here and the January 2019 Visa Bulletin here.

___________________________

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.

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.

You may access the September 2018 Visa Bulletin here and the October 2018 Visa Bulletin here.

___________________________

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.http://www.foxrothschild.com/alka-bahal/

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” (June 13, 2017), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the July 2017 Visa Bulletin and provides his projections for monthly final action date movement through the remainder of this fiscal year.

Check-in with DOS’s Charlie Oppenheim: June 13, 2017

EB-1 China and India. The final action date for EB-1 China and EB-1 India (January 1, 2012) that was imposed in June 2017 remains for July 2017 and is expected to hold through the end of this fiscal year. Due to the availability (through May) of “otherwise unused numbers” in these categories, EB-1 China has used more than 6,300 numbers and EB-1 India has used more than 12,900 so far this fiscal year.

EB-2 Worldwide. Since demand declined slightly in the second half of May, and demand during the first week of June was steady, Charlie felt comfortable keeping EB-2 Worldwide current in July. A final action cut-off date will be imposed in this category in August and will be more dramatic than it would have been if a date had been imposed in July. The good news is that this category will become current again on October 1, 2017.

EB-2 India. In July, the final action date for EB-2 India will advance three weeks to July 22, 2008. Charlie expects minimal advancement in this category through the rest of the fiscal year. The best case scenario for this fiscal year would be a final action date of September or October 2008.

Pressure on this category is attributable to high demand in EB-2 India and the lack of otherwise unused numbers under the EB-2 annual limit, which had been prevalent through FY-2015. Charlie noted that approximately 40 percent of the available EB-2 India numbers are being used by beneficiaries who have upgraded from EB-3 India.

EB-2 China and EB-3 China. For the first time this fiscal year, the final action date for EB-2 China is later than the final action date for EB-3 China. EB-2 China advanced three weeks in July to March 22, 2013, and Charlie expects slow progress in this category will continue. By contrast, EB-3 China will retrogress three years in July to January 1, 2012, as a result of a significant amount of EB-3 downgrades. The final action date for EB-3 China Other Workers will hold at July 15, 2006, and this date could also retrogress in August.

The final action date of January 1, 2012, for EB-3 China will hold through the end of this fiscal year, but will advance to October 1, 2014, effective October 1, 2017.

The annual allocation for EB-3 China is only 2,500 because the Chinese Student Protection Act requires an offset of 1,000 numbers from the China employment-based visa annual limit each fiscal year. Three hundred of those numbers are deducted from the EB-3 limit, and seven hundred numbers are deducted from the EB-5 limit.

EB-3 Worldwide. In July, EB-3 Worldwide will advance less than two months to June 8, 2017, keeping this category effectively current.

EB-3 India. In July, EB-3 India will advance five months to October 15, 2005, and should continue to advance. The otherwise unused numbers for EB-3 Worldwide are required to be allocated in order of priority date, meaning that these numbers will fall to EB-3 India, which has the earliest final action date in the EB-3 category.

EB-5 China. The final action date for EB-5 China will continue to hold at June 8, 2014, in July and Charlie expects this category to advance to by one week for August. Some additional forward movement in this category remains possible for September should demand by USCIS be less than estimated.

FB-4 Worldwide. In July, the final action date for FB-4 Worldwide will be May 8, 2004. Charlie hopes to advance this category later this fiscal year, but the data is too close to make a definitive prediction at this time. The response rate to the NVC “Agent of Choice” letters in this and most family-based categories is less than 50%, with less than 35% of those respondents providing all of the information required for a visa interview to be scheduled. Charlie reminds members that it is important to promptly respond to an “Agent of Choice” letter. If individuals who received “Agent of Choice” letters before April 2016 had responded promptly, more than 100,000 of them could have been scheduled for an interview by April 2017.

Special Immigrants. A final action date of August 15, 2015, will be imposed for EB-4 India in July. This date tracks the July final action date for El Salvador, Guatemala, Honduras, and Mexico (which advanced one month from June) and will continue to do so for the remainder of the fiscal year, possibly reaching October 2015. In October, EB-4 India is expected to return to current. A final action date for EB-4 will continue into FY 2018 for the other countries, though Mexico may have different date from El Salvador, Guatemala, and Honduras.

Note: numbers “otherwise unused” under the Worldwide EB-3 limit are allocated in order of priority date without regard to the per-country limitation. Therefore, such numbers would be provided to EB-3 India applicants, which are subject to the earliest final action date.

For July, EB-3 Philippines will advance one year to May 15, 2014, and will likely advance to a date in the fall of 2015 before the end of this fiscal year.

You may access the July 2017 Visa Bulletin here and the August 2017 Visa Bulletin (once available) here.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, 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.

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” (April 16, 2017), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie offers his analysis of current trends and future projections for the various immigrant preference categories for the beginning of the next fiscal year (May 2017) and beyond.                                                                      

Check-in with DOS’s Charlie Oppenheim: April 16, 2017

FB-4 Worldwide. FB-4 Worldwide should be watched closely. Following aggressive movement of the final action date in April, this category is not expected to advance. The April movement seems to have stimulated applicants to take action, and increased demand may require a temporary retrogression in this category later this fiscal year. Should retrogression occur, the category would recover completely in October, the first month of the new fiscal year. The final action dates for all other family-based categories are expected remain stable.

EB-1 and EB-2 Worldwide. As noted in the May 2017 Visa Bulletin, EB-1 and EB-2 Worldwide demand at USCIS has increased dramatically over the past six weeks, signaling the possibility of a future correction to the final action date. Charlie explained that number usage in both of these categories for January and February was about 1,000 higher than earlier months and he expects that it will be at least that high, if not higher, in April. While this is positive in the sense that USCIS is clearing out and approving cases, it may limit the ability for the agencies to take final action on pending cases towards the end of the summer if a correction is required.

EB-1 India and China. Charlie has been predicting the imposition of a final action cut-off date for EB-1 China and India for several months and echoes that warning in the May Visa Bulletin. Charlie tells AILA that the only reason a final action cut-off date has not already been imposed is that thus far, India and China have been able to benefit from “otherwise unused numbers” not currently required for other countries. The use of “otherwise unused numbers” by these two countries will soon end in order to ensure that other countries who have not yet reached their EB-1 per country limit can remain “current.” The worldwide demand and heavy use of EB-4 and EB-5 numbers, which in earlier years had remained unused and had “fallen up” to EB-1, has resulted in the restriction of EB-1 number use strictly to those numbers available to that category on an annual basis.

Charlie predicts that a final action cut-off date will be imposed for EB-1 China and India no later than July. When that occurs, both countries will have the same final action date. While these categories will not technically become “unavailable,” the date that is imposed will effectively shut off the use of additional numbers.

EB-2 India. March demand for EB-2 India doubled from February. Based on this spike in demand, Charlie can no longer say with confidence that this category will recover to last year’s level. However, there may still be some room for the date to advance further, and based on current demand patterns, the absolute best case scenario would be for the final action date to reach December 2008. The wildcard factor is whether EB-3 upgrades will subside or continue at the same or faster pace. Charlie lacks visibility into EB-3 upgrade demand until a visa number is requested, and therefore cannot plan final action date movements with as much precision as he would like.

The China EB-3 Downgrade Phenomenon. The gap between EB-2 China and EB-3 China continues to widen in May, with EB-3 China advancing six months to October 1, 2014 and EB-2 China advancing less than one month to February 8, 2013. Consistent with this trend, AILA members should not expect any significant advancement in the final action date for EB-2 China this fiscal year. By contrast, we may continue to see a healthy advancement of EB-3 China until or unless the expected EB-3 downgrade phenomenon materializes.

Based on current data, Charlie predicts that the final action date for EB-2 China may advance as far as a date in spring or summer 2013 before the end of this fiscal year.

EB-4 Religious Workers and EB-5 Investors (I5 and R5). Both the EB-4 Religious Worker and EB-5 Investor Programs will sunset on April 28, 2017 unless reauthorized by Congress. As such, the May Visa Bulletin notes that both of these categories will be unavailable in May unless Congress acts. Should Congress reauthorize both programs, EB-4 will return to current with the exception of EB-4 El Salvador, Guatemala, Honduras and Mexico, which would be subject to a July 15, 2015 final action date. With regard to these countries, and despite healthy demand, Charlie maintains that it is still possible that the final action date may advance before the end of the fiscal year.

If the Investor Program is reauthorized, all countries except China would become current, with a final action date of June 1, 2014 for EB-5 China (I5 and R5).

You may access the May 2017 Visa Bulletin here, the April 2017 Visa Bulletin here, and the March 2017 Visa Bulletin here.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, 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.

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” (July 20, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the August 2016 Visa Bulletin and his analysis of current trends and future projections for the various immigrant preference categories.

Check-in with DOS’ Charlie Oppenheim: July 20, 2016

Reflections as We Approach the End of the Fiscal Year. The unveiling of the August Visa Bulletin leads us to contemplate possible Final Action Date movement for September, the final month of the fiscal year. In this month’s column we will review the August Bulletin, and consider predictions for September and prospects for recovery in key retrogressed preference categories in Fiscal Year (FY) 2017. Next month, we will cover predictions for Filing Date movement as we enter FY 2017.

EB-4 and Certain Religious Worker (SR) Preference Categories. The January 1, 2010 cut-off date which was imposed earlier this year for EB-4 El Salvador, Guatemala, Honduras, and Mexico will remain through September, the end of the fiscal year. The imposition of a cut-off date for these countries is largely due to high demand for Special Immigrant Juvenile visas. A January 1, 2010 cut-off date will also be imposed on EB-4 India starting in August, consistent with Charlie’s predictions.

Though EB-4 Mexico and EB-4 India will become current again in October, the prospects for a full recovery for EB-4 El Salvador, Guatemala, and Honduras are much less likely. A 2015 cut-off date will likely be established in these categories for October, with date(s) moving forward slowly through the next fiscal year. However, uncertainty surrounding the movement of the EB-4 Final Action dates for these Central American countries remains, given the lack of visibility into the number of adjustment of status filings that were received in April 2015, prior to the establishment of the cut-off date in May.

Family-Based Projections. In September, most of the family-based categories will likely hold or retrogress from where they are in August. Only F-4 Worldwide has the potential to advance in September. Charlie expects a full recovery from retrogressions in all of the family-based categories in October, with the exception of F-4 China and F-4 India which will take some time. Beginning in November 2015, beneficiaries of F-4 China and F-4 India started responding to NVC Agent of Choice letters in larger numbers, which has given Charlie better visibility into the demand in these categories, but ultimately resulted in the retrogression of these cut-off dates.

F-4 China, which previously shared the F-4 Worldwide Final Action date until retrogressing in June to January 1, 2003, will remain at that cut-off date through August. While this category will not advance in September, there should be a full recovery to the prior Final Action date of July 22, 2003 by November.

Similarly, F-4 India also shared the F-4 Worldwide Final Action date until it retrogressed in June. Charlie continues to predict that the Final Action date for F-4 India will remain at January 1, 2001 through September. A full recovery of this category to the Worldwide level will not happen in October. Given the high level of demand, the Final Action date should advance to around November 2002 in October, with a full recovery unlikely to happen prior to June 2017.

Charlie will be watching the F-2A and F-3 preference categories very carefully. Both categories are likely to retrogress temporarily in September, and then return to their respective August 2015 Final Action dates in October.

EB Preference Categories. The Final Action date of January 1, 2010 that was imposed in June for both EB-2 and EB-3 China remains the same in August with no forward movement in either of these categories expected this fiscal year. Although Charlie had hoped for more dramatic forward movement, EB-3 India should advance modestly into a 2005 Final Action date in September. EB-2 India will continue to track one week ahead of the EB-3 India Final Action date in September.

EB-3 Worldwide has been hovering close to “current” for some time, and is expected to do so through at least October.

A February 1, 2014 Final Action date for EB-2 Worldwide was imposed in the August Visa Bulletin, with the hope of holding number use to within the EB-2 annual limit. That date should hold at February 1, 2014 in September and is expected to fully recover to “current” in October. Although Charlie predicts the EB-2 India and EB-2 China cut-off dates will advance in October, they will not fully recover at that time. It is hoped that they will recover fully as soon as possible, with EB-2 China possibly recovering as early as November.

October Final Action dates for the EB-5 Regional Center categories remain uncertain as that category will sunset unless Congress acts prior to the end of the fiscal year. In setting cut-off dates for EB-1 China and EB-1 India, Charlie hoped to avoid having to establish a cut-off date for EB-1 Worldwide. Charlie expects that EB-1 China and EB-1 India will become current again in October, or November at the latest.

You may access the August 2016 Visa Bulletin here and the July 2016 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, 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.

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” (June 9, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the July 2016 Visa Bulletin and his analysis of current trends and future projections for the various immigrant preference categories.

EB-4 and Certain Religious Workers (SR) Preference Categories. As previously predicted, and noted in the July Visa Bulletin, a cut-off date of January 1, 2010 will be imposed in July for EB-4 Mexico. This is the same cut-off date imposed earlier this fiscal year for EB-4 El Salvador, Guatemala, and Honduras. There will be no forward movement in these categories prior to the end of the fiscal year. Despite the cut-off date in these categories, it is expected that EB-4 Mexico will become current in October and EB-4 El Salvador, Guatemala, and Honduras should advance to a 2015 cutoff date. A more precise prediction of the cut-off cannot be made until pending demand in September is reviewed. Charlie predicts that a cutoff date for EB-4 India will need to be imposed for August.

Family-Based Projections. FB-4 China, which shared the FB-4 Worldwide final action date until retrogressing in June to January 1, 2003, will remain at that cut-off date through July. Last month, Charlie raised the possibility of advancement in FB-4 China before October. Of course, any forward movement this fiscal year would require a decrease in demand in the FB-1, FB-2, and FB-3 preference categories. Once there is an infusion of new visa numbers in October, it is expected that the category will recover to the prior cut-off date of July 2003 no later than November.

Similar to FB-4 China, FB-4 India recently tracked the FB-4 Worldwide final action date until it retrogressed in June . However, unlike FB-4 China, the final action date for FB-4 India will definitely remain at January 1, 2001, through September. Charlie predicts that FB-4 India will advance to the former July 2003 cutoff date early in the next fiscal year, but expects that recovery to happen more slowly than for FB-4 China. Charlie anticipates that the FB-4 India date will reach late 2002 for October, and may fully recover to July 2003 by the end of the calendar year.

China EB-2 and EB-3. In June, the final action date for both EB-2 and EB-3 China retrogressed to January 1, 2010. Charlie reminds us that there will be no forward movement in either of these categories this fiscal year.

EB-2 Worldwide and India. It is likely that a cut-off date will be imposed for EB-2 Worldwide by September due to sustained high demand. In May alone, 4,300 EB-2 numbers were used worldwide (including PRC and EB-2 India demand). The impetus for this demand is unclear; it is unlikely the result of EB-3 upgrades, since the EB-3 date has essentially been “current” for a long time. In May, Charlie allocated EB-2 numbers to more than 1,400 applicants with priority dates of 2014 and earlier.

Charlie anticipates EB-2 India’s final action date will be one week beyond EB-3 India through the rest of the fiscal year. Based on current usage, there should be sufficient available unused EB-3 numbers worldwide to enable moderate forward movement in India EB-3 in the month of September.

Cutoff Date for China and India EB-1 Expected by End of Fiscal Year. In May alone, Charlie received requests for approximately 4,000 EB-1 numbers worldwide (including China and India). Members should expect to see a cut-off date imposed for China EB-1 and India EB-1 this fiscal year in either August or September. Both categories are expected to become current again in October. A cut-off date will not be imposed for EB-1 Worldwide (i.e., rest of the world, besides India and China) this fiscal year.

 

You may access the July 2016 Visa Bulletin here and the June 2016 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, 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.