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).

This month, before we move into Charlie’s comments and analysis of current trends and future projections for the various immigrant preference categories, we’d like to provide you with an overview of the changes introduced with the October 2015 Visa Bulletin.

The release of the October 2015 Visa Bulletin represents an historical shift in how the State Department presents data regarding the availability of immigrant visa numbers. The October Bulletin, and all Bulletins going forward, now lists important dates for both the family and employment based immigrant visa applicants:

(1) the “Final Action Dateschart, which is the date when DOS or USCIS may render a final decision on the applications (i.e. approve the grant of permanent residency because an immigrant visa number is available).  This chart contains the same “cut-off” data that has historically been published in the Visa Bulletin.

(2) the “Dates for Filing” chart, which is the date upon which individuals may file their permanent residence applications (Adjustment of Status).

As part of the Obama Administration’s Visa Modernization Proposal, the State Department is now publishing the “qualifying dates” within the newly named “Dates for Filing” chart. Other than the publication of these dates in the Visa Bulletin, the Department of State/NVC process for issuing “agent of choice” letters has not changed.

The “qualifying dates” or “dates of filing” is representative of the demand, based on the information available at the time of the determination, that the State Department anticipates will be available for that particular preference category and country of chargeability at some point in the upcoming 8 to 12 months. The purpose of setting “qualifying dates” has been to elicit from applicants the necessary information and documents for their immigrant visa applications to be considered “documentarily qualified” or ready to adjudicate once their priority date is reached. Once the priority date for a documentarily qualified case becomes current (i.e., is earlier than the “final action date”), the immigrant visa interview can be scheduled (or the application may be approved, if no interview is required). In general, USCIS will continue to follow the “Final Action Date” chart for the acceptance of adjustment of status applications. However, if USCIS determines that there are additional visas available it may exercise its discretion to accept adjustment of status applications in accordance with the “Dates for Filing” chart. Each month, the Visa Bulletin will indicate whether USCIS will accept adjustment applications during the upcoming month in accordance with the “Dates for Filing” chart. For the month of October, USCIS has agreed to permit both family- and employment-based immigrants to use the “Dates for Filing” chart to file adjustment of status applications. Thus, individuals who have a priority date earlier than the “Filing Date” cut-off for the month of October may submit an adjustment of status application in October.  In the future, applicants should refer to USCIS’ site to determine when to file for adjustment of status.

Below are highlights from the most recent “check-in with Charlie” (September 14, 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories as well as his insights on the new “dates for filing” chart.

QUESTION 1: What Is the Anticipated Impact of the Addition of “Dates for Filing” to the Visa Bulletin?

Until now, the Visa Office had limited visibility into the employment-based demand for immigrant visas primarily being processed by USCIS. Though the Visa Office made educated estimates as to future demand, since these predictions were based on limited information (e.g., historical patterns, demand filed prior to subsequent retrogression of dates), unanticipated surges in demand would sometimes arise. As a result, cut-off dates in the employment-based categories have been vulnerable to fluctuation, often advancing significantly, then suddenly stopping, retrogressing, or becoming unavailable with little to no warning.

The State Department anticipates that as USCIS begins to accept adjustment applications based on the “Dates for Filing,” it will eventually have better information regarding overall immigrant visa demand. When USCIS receives an I-485 case, it pre-adjudicates the case and requests a visa number from the State Department. If the “Final Action Date” is current, the State Department will authorize an immigrant visa number and USCIS will approve the case and proceed with production of the permanent resident card. If the “Final Action Date” is not current, the State Department will be unable to authorize a visa number and the case is placed in the Visa Office’s “pending demand file.” The data maintained in the pending demand file data enables Charlie to better assess demand and move the “Final Action Dates” at a more reasonable and predictable pace over time. Based on published USCIS processing times it takes approximately six months for these cases to be received and pre-adjudicated by USCIS, so Charlie expects that he will have a better sense of overall employment-based immigrant visa demand at USCIS starting in the spring of 2016.

QUESTION 2: How will the “Dates for Filing” Change?

Charlie will determine the need for changes to the various “Dates for Filing” at the same time he is making the determination of the upcoming month’s cut-off dates. They will generally remain the same or may move forward slightly throughout the fiscal year.

QUESTION 3: Will Adding “Dates for Filing” to the Visa Bulletin Negatively Impact the “Final Action Dates”?

Although some members have expressed concerns that the addition of the “Dates for Filing” might negatively impact “Final Action Dates,” Charlie assures us that is not the case. The “Final Action Dates” listed in the October Visa Bulletin are conservative while he sees the time impact of recent changes in the dates, and they are not expected to retrogress in the foreseeable future, or without prior warning. Instead, USCIS allowing I-485 submission based upon the “Dates for Filing” will provide much needed visibility into USCIS demand which will ultimately result in more predictable and steady movement of the “Final Action Dates.” For example, earlier this year, the lack of visibility into demand initially resulted in the rapid forward movement of the cut-off date for EB-2 China in an effort to generated number use within the annual limit, which then abruptly rolled-back when demand materialized at a much higher rate than could have been anticipated. This “whiplash” phenomenon is likely to cease to occur once the new system is implemented and more reliable employment-based visa demand data is available to the State Department when determining Final Action dates.

You may access the September 2015 Visa Bulletin here and the October 2015 Visa Bulletin here.

http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-september-2015.html

http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html

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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” (August 14, 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie answers a series of questions from the public, with no individual commentary on the immigrant visa preference categories for this month or next:

QUESTION 1: Last month you were hopeful that EB-2 India/China would hold steady or possibly advance for September. However both categories have retrogressed significantly. What caused this to occur?

ANSWER: The September retrogression of EB-2 China and India can primarily be attributed to skyrocketing demand for EB-2 Worldwide, which has left fewer numbers available for India and China. Currently, the availability of visas for India and China is largely driven by Worldwide demand. Earlier this year, EB-2 Worldwide demand was around 2,400 per month and started creeping up in March. In June, demand peaked at 6,700, and with July usage totaling 4,400 it was necessary to take corrective action for EB-2 China and India to limit future number use.

Similarly, fewer EB-1 numbers are available to fall down to EB-2 China and India. During the second quarter of the fiscal year, 9,300 EB-1 numbers were used. That jumped to 13,500 EB-1 numbers in the third quarter.

In particular, overall EB-2 India usage is down significantly this year due to the fact that fewer unused numbers are available for this category. Last fiscal year, EB-2 India used approximately 23,000 numbers. This year, it is expected that EB-2 India will use approximately 7,500 numbers. This is approximately 9,700 fewer numbers than that which were used in FY 2013.

 

QUESTION 2: How likely is it that EB-2 India and China will advance significantly with the start of the fiscal year on October 1?

ANSWER: It remains to be seen what will happen in October as we enter the new fiscal year.

 

QUESTION 3: Is it expected that all numbers in all categories will be exhausted by the end of the fiscal year?

ANSWER: Yes. All visa numbers in all categories will be exhausted. There has been some concern about EB-3 number use because there appeared to be a decrease in demand which caused the Worldwide cut-off date to advanced rapidly. There is sufficient EB-3 India applicants in the pending demand file to ensure that all “otherwise” unused numbers will be used this fiscal year.

 

QUESTION 4: The “Visa Modernization” proposal promises to refine the monthly allocation of visas, increasing the number of visas allocated during the first three quarters, and implementing new processes for allocation during the final quarter of the fiscal year. Can you please elaborate on this plan? Do you expect to implement the changes effective 10/1/15?

ANSWER: This is still a work in progress but members should be happy with what is ultimately rolled out. Some changes have already been implemented. As stated in the Visa Modernization proposal, members may see more aggressive cut-off date movements for some preference categories earlier in the year. Similar movement occurred earlier this year with regard to EB-2 India; advancement of that category started much earlier than in prior years to allow USCIS sufficient time to complete processing of the cases, many of which were EB-3 upgrades, earlier within the fiscal year. However, aggressive movement earlier in the year can have “negative” consequences during the final quarter when there are fewer numbers available. As a result it could be necessary to take corrective action if it becomes clear that there would be fewer numbers available from other categories.

In addition to accelerating cut-off date movements earlier in the fiscal year, other options are being explored. As plans are refined, the information will be made available to the public.

You may access the August 2015 Visa Bulletin here and the September 2015 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.

Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his 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” (May 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

Worldwide EB-2. The demand in this category has exploded, far exceeding the historical pattern of the previous five months. There was an 80% increase in demand from February to March, and demand increased more than 100% in April as compared to February. The Visa Office had no advance notice that this demand would materialize, or whether it will be sustained. Despite this unanticipated surge in worldwide EB-2 demand, it is expected that this category will remain current.

While the increase in demand will not impact worldwide EB-2 applications, it will negatively impact EB-2 India in that fewer unused worldwide numbers are likely to be available for EB-2 India. Earlier in the year, Charlie expected that he would be able to advance EB-2 India to July or August 2009 by the end of the fiscal year. That may not be possible now, given the uptick in worldwide usage.

EB-2 and EB-3 China. Demand in EB-2 China has been low and may result in numbers falling down to EB-3 China. In recent months, the China EB-2 cut-off date has been advanced by almost three years. It is hoped that this will spur demand, although it is unclear whether cases can be processed by the end of the fiscal year. Earlier when the cut-off date for China EB-3 was advanced due to insufficient number use, it prompted EB-2s to downgrade to EB-3. Charlie has no visibility as to upgrades or downgrades as no data is available until final action occurs. He continues to watch EB-2 and EB-3 demand very closely.

EB-5 China. The cut-off date of May 1, 2013 that was imposed last month will remain for June. Charlie continues to watch demand for EB-5 China and has no additional predictions for the category at this time. Applicants continue to become documentarily qualified and the level of demand in May was within his targeted projections for June number use. There is huge demand in terms of petitions pending final action at USCIS as well as approved petitions which are already at the NVC. It must be remembered that not all cases with a priority date earlier than May 1, 2013 have been processed to conclusion.

Philippines EB-3 and “Other Worker” Categories. Heavy demand in these categories persists and further corrective action may be necessary before the end of the fiscal year. Like the dramatic increase in worldwide EB-2 demand, the use of more than 2,000 numbers during a two month period was totally unexpected based on USCIS demand from the past year.

Mexico FB-4. This category had a larger number of applicants with early priority dates who were documentarily qualified which prompted Charlie to retrogress this category slightly to March 1, 1997.

Questions and Answers:

QUESTION: What are your thoughts about the interplay between priority date movement and the validity of medical examinations? In categories that tend to advance and retrogress with some frequency (i.e., EB-2 India), it appears that when the cut-off dates are advanced, it takes USCIS 2 to 3 months to get to a particular case, then it issues an RFE for a new medical examination, then the dates retrogress.

ANSWER: The Visa Office is aware that medical exams have limited validity and U.S. Citizenship and Immigration Services (USCIS) shares information regarding the number of pending EB-2 India adjustment of status applications.

Number use during the first six months of the last fiscal year suggested that a significant number of “otherwise” unused EB-1 and EB-2 numbers would be provided to EB-2 India. Therefore, best and worst case scenarios were provided to USCIS regarding the cut-off which might be achieved for FY2014, and USCIS used that information in deciding whether to issue RFEs. The EB-2 India cut-off date advanced very rapidly from July through September, reaching May 1, 2009. Although the worst case scenario cut-off date was surpassed, subsequent increases in EB-1 and EB-2 number use during the summer months did not allow the best case scenario to be achieved. Much of that increase was the result of EB-3 India cases being upgraded to EB-2. The Visa Office has no information regarding the demand that may result from such upgrades until that change is actually reported by USCIS.

The May 1, 2009 cut-off date was held for October, the first month of the new fiscal year, in an attempt to allow final action to occur on cases which had become eligible for processing during the summer months. It was then necessary to retrogress the cut-off date for November in order to limit number use under the FY2015 limits. After discussing the issue with USCIS, the Visa Office decided to begin advancing the cut-off date for EB-2 India much earlier in the fiscal year than in previous years. The hope was that this would provide sufficient time for I-485s that were filed last year to be processed to conclusion prior to the expiration of the medical exams, and provide additional time for those who would be filing this year.

One by-product of the earlier rapid movement of EB-2 India was that the surge in EB-3 to EB-2 upgrades began much earlier than in years past. The Visa Office could not predict volume of demand for upgrades, or the rate at which the increase in demand would be realized. The amount of demand, combined with a staggering increase in overall EB-2 number use during the past two months, will likely slow the advancement of EB-2 India through the rest of the fiscal year. If the March/April demand turns out to be a temporary aberration and demand returns to that which we experienced from October to February, movement of the EB-2 India cut-off date could be more favorable.

QUESTION: What can we expect in the coming months for FB-2A for “All Chargeability Areas?”

ANSWER: The worldwide FB-2A category is expected to continue to advance slowly. It has been advancing a little faster to maximize number use during the first three quarters of the fiscal year. There may be a slight slow-down as we move into the final quarter.

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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.