priority date rollback

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” (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” (August 11, 2017), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

As the September Visa Bulletin sets forth the final action dates for the last month of Fiscal Year (FY) 2017, this month Charlie provides his predictions on final action date movement in October and during FY 2018.         

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

EB-1 China and EB-1 India. The final action date of January 1, 2012, which was imposed in June 2017, will remain the same for EB-1 China and EB-1 India, as predicted. Based on current information, these categories will likely return to Current in October. However, Charlie will continue to monitor demand carefully between now and early September. A final action date will definitely be imposed again for EB-1 China and EB-1 India at some point during the summer of 2018.

EB-2 Worldwide. The final action date for EB-2 Worldwide advances nine months in September, from April 1, 2015, to January 1, 2016. This category will become current again on October 1, 2017, and it should remain current for the foreseeable future.

EB-2 India. Smaller than anticipated EB-3 to EB-2 upgrade demand allows EB-2 India to advance one month to August 22, 2008, for September. Members should expect additional, slow movement of a few weeks at a time starting in October. It is hoped that the final action date for EB-2 India will be advanced to a date in December 2008 at some point between January and April 2018, depending on the level of EB-3 upgrade demand. Charlie is also hopeful that the final action date for EB-2 India could advance to a date in 2009 at some point during the second half of FY 2018.

EB-2 and EB-3 China. In September, the final action date for EB-2 China will advance slightly to May 15, 2013, and the final action date for EB-3 China will hold steady at January 1, 2012. Members should expect to see a full recovery of EB-3 China in October, putting it once again ahead of the final action date for EB-2 China, creating conditions for EB-3 downgrades. EB-2 China should advance more swiftly than EB-2 India in the coming fiscal year, at a pace of three to six weeks per month.

EB-3 Worldwide. The EB-3 Worldwide final action date, which became current in August, is likely to remain current in October, absent significant demand materializing within the next few weeks. Demand for EB-3 Worldwide will have a significant impact on the ability of the EB-3 India final action date to advance significantly at the end of FY 2018, based on the availability of “otherwise unused” numbers.

EB-3 India. The final action date for EB-3 India advances three months in September to October 15, 2006, consistent with Charlie’s predictions. This category is expected to continue to advance at a pace of several weeks at a time as we enter the new fiscal year.

EB-3 Philippines. The final action date for EB-3 Philippines advances another five months to November 1, 2015, in September. Charlie speculates that demand in this category may materialize abruptly, but he does not expect that to occur until after the first of the year.

EB-5 China. The final action date for EB-5 China holds at June 15, 2014, in September. This category will sunset at the end of September if the program is not reauthorized by Congress. As in the past, the October Visa Bulletin will likely address the final action date that will apply to this category if it is reauthorized.

FB-1 and FB-4. As noted in the Visa Bulletin, high demand necessitated a temporary retrogression of the final action dates in the FB-1 and FB-4 Worldwide, China, El Salvador, Guatemala, India and Honduras categories for September. A full recovery of the final action dates for these categories will occur in October.

Special Immigrants. In September, the final action date for EB-4 India, Mexico, and El Salvador, Guatemala, and Honduras advances more than one month to October 22, 2015. EB-4 India will become current in October and will remain so until spring or summer 2018. Additionally, in October, it is possible that EB-4 Mexico will have a later final action date than the one imposed for EB-4 El Salvador, Guatemala and Honduras. If that should happen, it may only be temporary.

You may access the August 2017 Visa Bulletin here and the September 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” (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” (January 13, 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 (October 2016) and beyond.                                                                                                   

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

QUESTION: What can we expect in terms of movement of FB-2 Final Action Dates?

ANSWER: All of the family-based categories will continue to move at a rate that is consistent with the current pace. I do not expect any dramatic forward movement or slowing down in the coming months. FB-2A should continue to move an average of three weeks each month.

The only family-based categories which may change in terms of the rate of forward movement are the Philippines categories. There is very low demand for FB-2B and F-4 Philippines. Cut-off dates for the other Philippines FB categories have advanced at a faster pace initially, but if demand for FB-2B and F-4 starts to increase, movement in the other categories may start to slow.

F-4 China will reach the F-4 Worldwide date in March.

F-4 India will continue to move but is not expected to reach the F-4 Worldwide date until summer. If there are unused numbers from the other preference categories that fall down to F-4 India, the cut-off date may advance more quickly.

Movements in the family-based Final Action Dates may start to slow in the second half of the fiscal year. Updated projections will appear in the next Visa Bulletin.

QUESTION: Can we expect to see any movement in the “filing” dates during the fiscal year, or is movement generally confined to the beginning of the fiscal year?

ANSWER: I monitor these dates throughout the fiscal year and there may be some updates in the coming months. Changes in the filing dates tend to be more dramatic at the beginning of the fiscal year, but changes are sometimes required in the second half of the year based on demand patterns and future needs.

GENERAL OBSERVATIONS. Number usage to date is higher than last year across the board.

EB-4 EL SALVADOR, GUATEMALA, HONDURAS AND MEXICO. Since our last column, Charlie has received information that potential demand for EB-4 El Salvador, Guatemala, Honduras and Mexico prior to the current Final Action Date could be significant. For example, there are more than 1,500 pre-adjudicated applications for EB-4 El Salvador alone. Because there is already enough pre-adjudicated demand beyond the current date to reach the annual targets, the Final Action Date will continue to hold. If the date were to advance now and there was a subsequent flood of demand with earlier priority dates, this could cause the date to retrogress.

EB-1. Demand in this category remains strong and a cut-off date for EB-1 India and EB-1 China will need to be imposed later this fiscal year. Charlie will hold off doing so for as long as possible, but is confident that it will happen. When it does, members should not expect the date to retrogress quite as far back as last fiscal year when the date rolled back to 2010. Charlie continues to expect that the imposition of a Final Action cut-off date in these categories will be relatively short-lived and that EB-1 China and India will return to “Current” in October when the FY 2018 numbers become available.

EB-2. Tremendous demand resulting from EB-3 upgrades means EB-2 India will not advance in February and will likely hold at the current Final Action cut-off date of April 15, 2008 in March. If demand for EB-2 Worldwide remains strong, it is unlikely that EB-2 India will be able to benefit from any unused numbers and may be restricted to its 2,800 per country limit. If the trend in demand continues, EB-2 India is unlikely to recover to last year’s date. Members should not expect any significant movement in this category until at least July or August. Charlie continues to monitor this very closely. If the current surge in demand is not sustained, and Worldwide demand, or India demand with early priority dates subsides, more forward movement than what is currently projected may be possible.

Unlike EB-2 India, EB-2 China did advance somewhat to November 15, 2012 since demand in this category is not currently exceeding the monthly target.

EB-3. EB-3 Worldwide demand has subsided. The decrease in demand that allowed Charlie to advance the Final Action cut-off date earlier this fiscal year continues, and allowed him to advance the date again to October 1, 2016. While this trend may continue, due to current USCIS processing times, additional forward movements after March are unlikely to impact number usage in this category this fiscal year.

EB-3 China downgrades have not yet materialized at the level which had been experienced in past years. Nevertheless, Charlie is not advancing the Final Action date in this category significantly in an effort to avoid retrogression if demand from downgrades materializes in the coming months as expected.

Members should expect consistent forward movement in the EB-3 Philippines Final Action Date. Charlie expects this category to recover significantly but does not expect it to reach the Worldwide date.

EB-5. The EB-5 China categories should continue to advance at the rate of 1 to 2 weeks at a time.

You may access the February 2017 Visa Bulletin here and the January 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.

___________________________

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.

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.