priority date advancement

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.

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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.

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 13, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the dramatic final action dates movement in the April Visa Bulletin, which hold steady for May, and provides his predictions on final action date movement in the coming months.

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

Given that USCIS takes roughly five months to process I-485 applications to completion, the dramatic final action date advancements in the April Visa Bulletin were not completely unexpected as the objective is to spur more applications in May and June in order to ensure that the full visa numbers will be used by the end of the fiscal year on September 30, 2018.  Since it is unlikely that most May I-485 filings will be processed to completion before the end of the fiscal year, many employment-based preference categories hold their April final action dates in the May Visa Bulletin, with only modest advancements in a few select categories.  These advancements were made in an abundance of caution, based on data Charlie received from USCIS regarding the number of pending cases.

Categories in which final action dates will remain the same include:

  • EB-1 China and India;
  • EB-2 India;
  • EB-3 China and Philippines;
  • EB-4 El Salvador, Guatemala and Honduras, and
  • EB-5 China.

There are only five categories with modest advancements-

  • EB-2 China will move forward one month to September 1, 2014;
  • EB-3 India will advance three months to May 1, 2008;
  • EB-3 Other Workers China and India will advance one and three months respectively, to May 1, 2007 and May 1, 2008; and
  • EB-4 Mexico will advance roughly five weeks to October 22, 2016.

As Charlie predicted, EB-5 Vietnam became oversubscribed, due to high demand, and will assume a final action date of July 22, 2014 in May, tracking to EB-5 China.

 Most family-based preference petitions are processed through the National Visa Center and U.S. consulates abroad, which accept applications based on the “filing date” rather than the final action date.  As a result, Charlie has excellent visibility into demand in these categories, enabling a slow and steady progression of the final action dates with much less volatility than is seen in the employment-based preference categories.  Final action dates advance modestly in May for all family-based preference categories, except FB-1 China, India and Worldwide, which hold at the April dates. T here is no retrogression in any of the family-based preference categories in May.

What can be expected in the coming months?

It is likely that most employment-based final action dates will hold at their May dates for the month of June with some changes possible in July.  What occurs is entirely dependent on demand that may materialize, and continuing consultations with USCIS.  The wildcard this year that could cause unanticipated fluctuations in the final action dates is the pace of USCIS field office processing of I-485s.

With regard to EB-1 China and India, it is too early to know whether the high worldwide EB-1 demand seen over the past few months is the result of a processing glut or sustained demand.  It is likely that EB-1 China and India will hold for at least another month, but Charlie will continue to watch demand to determine whether any advancements may be possible.

While Charlie is hopeful that the advancements made in April to EB-2 China will be sufficient to exhaust the visa numbers in this category, he continues to monitor China EB-3 downgrades and is likely to hold the final action dates in these categories for at least another month.  However, there still remains the possibility of some advancement later this fiscal year if the anticipated demand does not materialize.

As noted above, EB-4 Mexico advanced five weeks in May.  Although Charlie predicted a summer retrogression of this category to track to the final action date of EB-4 El Salvador, Guatemala and Honduras, if demand lightens it may be possible to avoid or perhaps delay retrogression for EB-4 Mexico.

You may access the April 2018 Visa Bulletin here and the May 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.

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 12, 2016), 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 (October 2016) and beyond.

Check-in with DOS’s Charlie Oppenheim: September 12, 2016

EB-4 and Certain Religious Worker (SR) Preference Categories. As predicted last month, the final action dates for EB-4 India and EB-4 Mexico will be current again in October and the priority dates for EB-4 El Salvador/Guatemala/Honduras will advance to June 15, 2015. While Charlie considered establishing a separate final action date for Guatemala and Honduras due to the higher demand for numbers from El Salvador, all three countries are expected to exceed the per country limitation and rely on the availability of “otherwise unused” EB-4 numbers. Thus, Charlie confirmed that the three countries will continue to be reported together throughout FY 2017.

It is expected that EB-4 India and EB-4 Mexico will remain current for the foreseeable future, until at least late spring, early summer 2017. EB-4 El Salvador/Guatemala/Honduras is expected to advance modestly, by no more than two months at a time in a best case scenario. Charlie notes that there is likely more demand in this category at USCIS to which he does not yet have visibility, so his predictions may change depending on the rate at which such demand begins to materialize.

EB-4 religious workers will be unavailable in October, pending congressional action to reauthorize the program beyond September 30, 2016. Should that occur, El Salvador/Guatemala/Honduras would be subject to a June 15, 2015 final action date, and all other countries would be current.

EB-1 China and India. In October, the EB-1 final action date for all countries will return to current. Due to the brief imposition of a final action date in India and China at the end of FY 2016, there will be high usage in these categories in October. EB-1 India and China can be expected to remain current for the foreseeable future. Charlie will continue monitor this category closely during the second half of the fiscal year if demand remains high.

EB-2 and EB-3. As predicted, EB-2 Worldwide will again be current in October and ahead of EB-3 Worldwide which will have a final action date of June 1, 2016. As there is pent up demand in EB-2 Worldwide due to the retrogression, visa usage in this category will be high in October. Charlie will monitor this category closely during the final quarter of the fiscal year.

Consistent with Charlie’s predictions, in October, EB-2 China will have a final action date of February 15, 2012, almost one year behind EB-3 China’s final action date of January 23, 2013. Thus, the EB-3 downgrade phenomenon should once again be expected for FY2017. Charlie did not advance either of these final action date to the full number use target given the likelihood of demand at USCIS that is not yet visible and to minimize the need for corrective action later in the fiscal year. Charlie hopes to keep the final action dates for EB-2 and EB-3 China as close to one another as possible.

Also consistent with Charlie’s predictions, the final action date for EB-2 India will advance to January 15, 2007 in October. Charlie expects this category will advance at a pace of up to four months at a time. Slower movements of up to a week at a time are anticipated for EB-3 India, which will advance to a March 1, 2005 final action date in October. Number usage for EB-3 India is expected to be high in October, which will decrease the amount of numbers Charlie can allocate in November and December and slow the advancement of this category.

The EB-3 Philippines final action date will be December 1, 2010 in October. Charlie expects this category to initially move up to three weeks per month. He hopes that the final action date will move through 2011 as soon as possible and that it will be well into 2013 by the end of the fiscal year.

EB-5 China. EB-5 China non-regional centers will have a final action date of February 22, 2015 in October. EB-5 China regional centers will be “unavailable” in October pending Congressional reauthorization of the program beyond September 30, 2016. Should this category be reauthorized, the final action date will be set at February 22, 2014. So as not to completely halt visa processing in October, DOS has set tentative Immigrant Visa appointments for the second half of October, which will be remain scheduled in the event that Congress reauthorizes the program.

Family-Based Projections. In October, the final action date for F-2A will be December 22, 2014 for all countries except F-2A Mexico, which will be December 1, 2014. As has been the case during FY 2016, F-2A Mexico is expected to lag behind the rest of the world by about 3 weeks for the rest of the fiscal year. China and India’s final action dates track those for the rest of world in all family-based categories with the exception of F-4. Charlie expects F-4 China to catch up to the final action date for F-4 Worldwide within three to four months. The F-4 India final action date will advance into 2013 for November, but unlike F-4 China, will remain behind F-4 Worldwide for the foreseeable future.

Application Filing Dates. Given higher levels of demand in relation to the expected availability of numbers during FY 2017, the Application Filing Dates in several categories, such as EB-5 China and EB-2 India, have retrogressed. Applicants are reminded to refer to USCIS’s website as to whether it will honor the Application Filing Dates for I-485 applications.

You may access the October 2016 Visa Bulletin here and the September 2016 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” (March 10, 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 April 2016 Visa Bulletin and provides his projections for monthly final action date movement through the first calendar quarter of 2016.

Final Action Date Movements Consistent with Prior Predictions. The Final Action Dates in the April 2016 Visa Bulletin are consistent with Charlie’s predictions last month (see below).  In February, Charlie predicted that we would continue to see forward movement of up to five months in EB-2 and EB-3 China, and in April, EB-2 China will advance one month and EB-3 China will advance one and a half months. This modest advancement is attributable to an increase in I-485 cases in these categories coming to completion.

Charlie indicates that he has limited to no visibility into immigrant visa demand at USCIS until USCIS completes adjudication of an I-485 and requests a visa number. The difference in USCIS processing times at various offices makes it difficult to predict future demand and thus, difficult to adjust the Final Action Dates in such a way as to avoid volatility over the course of the fiscal year. For example, when the February Final Action Dates were announced in early January, USCIS reported 400 India EB-2 applicants who were eligible for final action, but by the end of February, USCIS had requested an additional 300 of these numbers. When an abrupt increase in demand such as this occurs, it is impossible to know whether it represents a sustained increase in demand in that category, whether it is the result of preference category upgrades or downgrades, or whether it merely represents a one-time reallocation of adjudication resources. Additional transparency and data analytics into pending I-485s would be helpful, and it is hoped that USCIS’ use of the Dates for Filing will eventually provide such insight.

Although it is imperfect, Charlie must make assumptions regarding upcoming demand based on the available data and his prior experience in an effort to stabilize Final Action Date movements. Charlie prefers to advance the Final Action Dates conservatively in the hope of avoiding a retrogression later in the fiscal year, especially in categories that are subject to upgrades and downgrades. Unfortunately the need to generate sufficient demand to use all numbers available under the annual limits often requires aggressive forward movement of the dates. This is the case with the EB-3 Worldwide cut-off date which has advanced 16 months in the past year, and is only one month behind today’s calendar date.

Forward movement in the EB-3 China Final Action Date has been slow due to concerns that EB-3 downgrade cases (from EB-2 China) may soon come to completion and result in a spike in demand in that category.

April movement in the Indian employment-based categories is also consistent with Charlie’s predictions last month. The EB-2 India Final Action Date will advance less than one month in April, moving to November 8, 2008. Forward movement in this category could be slower than originally expected due to increasing demand in this category which can be attributed to upgrades from EB-3 India. Additionally, EB-1 Worldwide usage continues at a steady pace, making it unclear how many numbers might be available to fall down for potential use in EB-2 India. This should become clearer in the coming months as additional demand data becomes available. The EB-3 India Final Action Date will also advance only three weeks to August 8, 2004.

Announcing the NVC EB-5 Investor Assistance Desk. The April Visa Bulletin also included an announcement regarding the new National Visa Center (NVC) EB-5 Investor Assistance Desk. The NVC has created a dedicated email address (NVCeb5@state.gov) to address EB-5 inquiries. This email box will be staffed with officers who are knowledgeable in EB-5 matters in an effort to improve customer service.

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As we did not post Charlie’s predictions from last month, here are his February 2016 predictions:

EB-2 and EB-3 China. Final action dates for EB-2 and EB-3 China will continue to advance in March. EB-2 China will advance five months from March 1, 2012 to August 1, 2012.  Charlie believes that there is potential for EB-2 China to continue to advance monthly at this same rate.  EB-3 China will advance more dramatically in March, from October 1, 2012 to June 1, 2013, and Charlie believes that this category has the potential to continue to advance five months each month.  However, it is extremely important to remember that changes in USCIS demand patterns could drastically alter cut-off date movement and require corrective action at some point.

Charlie is watching these two categories and the interplay between them closely. In the February Bulletin, the EB-3 China final action date was seven months ahead of EB-2 China.  In March, the final action date for EB-3 China will be ten months ahead of the EB-2 China final action date.  Over the past two years, when the final action date for EB-3 China advanced beyond EB-2 China, EB-2 applicants responded by filing new I-140s to downgrade to EB-3, thus shifting the demand from EB-2 to EB-3.  The surge in EB-3 demand slowed the advancement of the cut-off date and ultimately led to retrogression of that category.  Although Charlie expects a similar pattern this year, significant EB-3 China demand has not yet materialized.

Note that while the filing dates for EB-2 and EB-3 India have not changed since last month (they remain at July 1, 2009 and July 1, 2005 respectively), the filing date for EB-2 China will advance five months (from January 1, 2013 to June 1, 2013) and the filing date for EB-3 China will advance 19 months (from October 1, 2013 to May 1, 2015). Charlie indicated that EB-3 China usage is split evenly between consular filings and adjustment of status filings at USCIS.  If USCIS were to permit adjustment of status filings for EB-3 and EB-2 China, it may help generate sufficient demand to balance out the final action dates in both of these categories.

EB-2 India. A fair amount of demand is starting to materialize in EB-2 India, including EB-3 upgrades. This is starting to slow the advancement of the final action date for EB-2 India, which will advance only one and on-half months in March (from August 1, 2008 to October 15, 2008).  Charlie expects this category to advance at a rate of up to three months.  When EB-1 and EB-2 Worldwide demand is assessed in June, more numbers may fall down to this category which could impact its movement.

EB-5 China. Charlie predicts that EB-5 China will continue to advance slowly and at a rate which would avoid the need for a retrogression.

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You may access the April 2016 Visa Bulletin here and the March 2016 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.