immigrant visa processing

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.

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

Congressional negotiations on a federal spending bill remain very active. To avoid a federal government shutdown, a decision or a short-term continuing resolution (CR) to fund the government at current levels must be reached by Friday, January 19, 2017. Until a deal is made or a CR is passed, the threat of a shutdown remains a possibility. Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

Such a shutdown will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

We will closely monitor the circumstances and provide updates as they become available. Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shutdown. Although employers must still complete the Form I-9 on a timely basis, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations. Federal contractors are recommended to contact their contracting officers to confirm time frames.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry. CBP is deemed an essential function and will likely continue operations at near normal capacity, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shutdown. However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shutdown, it will not accept or processing Social Security Number (SSN) applications. Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Department of Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shutdown because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card. This database, known as SAVE, could be suspended during a shutdown.

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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 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” (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” (November 12, 2015), 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 December 2015 Visa Bulletin and provides his projections for monthly final action date movement through the first calendar quarter of 2016.

EB-2 India: In December, the final action dates for EB-2 India will advance ten months to June 1, 2007. This is largely the result of a necessary correction following a roll-back in the date at the end of last fiscal year. As noted in the Bulletin, Charlie projects that EB-2 India may advance monthly by as much as eight months over the course of the next few months. In speaking with AILA, Charlie mentioned that a monthly advancement of eight months would be the best case scenario, but that the actual advancement is likely to be around four to six months at a time. Charlie expects that this movement will spur EB-3 upgrades which will eventually impact demand, slowing EB-2 India advancement. He expects the upgrade demand will start to materialize in December/January which will slow advancement in early 2016. Should the demand fail to materialize at the expected rate, then the “up to eight” month movement could occur.

The EB-2 and EB-3 China Dynamic: The EB-2 China final action date will remain the same in December 2015 and Charlie does not anticipate much, if any movement in this category over the next few months as he already expects that number use will exceed the targeted usage for the first quarter of the fiscal year. Charlie received requests for 600 numbers in October and has already received approximately 200 requests for numbers to date in November. Therefore, holding the cut-off will allow the number use figure to fall back within the targeted level over a period of time.

Since the final action date for EB-3 China is later than the EB-2 China final action date, Charlie expects that some EB-2 China cases will downgrade to EB-3, which will take some of the demand pressure off of EB-2 China. This phenomenon has happened the last two years and ultimately results in increased EB-3 demand which slows movement or even retrogresses that category, while at the same time allowing EB-2 China to advance once again. Charlie expects this rebalancing to occur at some point next year, possibly as early as April.

F-2A and F-2B: Last year, the family-based 2B category advanced very quickly because the demand did not initially materialize. The dates have now advanced to the point where demand is materializing. A similar phenomenon is occurring with regard to F-2A. The agent of choice letters are not spurring sufficient demand, so until demand materializes, we can expect to see continued advancements in this category. As noted previously, the response rate is low in many of the family-based preference categories.

Impact of Addition of “Filing Dates” Concept: It is too soon to determine when the new process will begin to provide the Visa Office with better visibility into immigrant visa demand so as to even out priority date movements in the employment-based categories. While preliminary data does not suggest that the filing dates adopted by USCIS will show enough demand to be meaningful, the impact, if any, is not expected to be known until at least April 2016 when USCIS starts to request visa numbers based upon the October filings.

Coming Attractions . . .

  • Release of Revamped Foreign Affairs Manual (FAM): The December Visa Bulletin included an announcement that the State Department’s internal guidance, known as the Foreign Affairs Manual (FAM), will be replaced with 9 FAM-e, effective November 18, 2015. The new FAM upon release and updates will be available in the coming weeks.
  • Expect to See the “Visa Waiting List” in the January Visa Bulletin: Charlie and his team are currently compiling the “Visa Waiting List” which will provide information on the waiting list at the National Visa Center (NVC) as of November 1, 2015. An announcement should occur in next month’s Visa Bulletin, if not sooner.

You may access the November 2015 Visa Bulletin here and the December 2015 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.

 

National Visa Center (NVC) was previously the domestic point of contact for all immigrant (i.e. permanent residence or ‘green card’) visa cases being processed through a U.S. Embassy or Consulate outside of the United States.  Beginning on Monday, January 12, 2015, the NVC is also the point of contact for all domestic inquiries regarding nonimmigrant visa cases as well.

The Visa Office reports that it choose to designate the NVC as the single point of contact for all visa matters at Consular Posts worldwide in order to improve the efficiency and consistency of responses to the public,

Consular posts will still accept inquires on individual visa cases and Legalnet will remain active and respond to inquiries from attorneys seeking advisory opinions on the interpretation or application of U.S. Immigration Law.

The general public may contact NVC by email at AskNVC@state.gov. Please note NVC will only answer the routine questions about case status and provide general information about the visa process.

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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.