In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (February 26, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie’s comments on the first quarter of this fiscal year are limited due to insufficient data, but we look forward to more specific predictions on demand trends and date movement in the coming months.      

Check-in with DOS’s Charlie Oppenheim:  February 26, 2019

Noteworthy Movements in March

The February 2019 Visa Bulletin listed projections for Final Action Date movements through May 2019 were all fulfilled, with the exception of EB-5 Vietnam, which was projected to move only 3 weeks, but actually advanced by one month for March. Members are reminded that when the projected movement is “up to” a particular amount of time, it means that movement should be interpreted as a range of movement per month between zero and the outer limit of said range from the present through May of 2019.

Employment-Based Preference Categories:

EB-1:  As predicted, there is only modest movement of one month for the EB-1 Worldwide Final Action Date in March, from December 1, 2017 to January 1, 2018. Similarly, the Final Action Dates for EB-1 China and EB-1 India creep forward only three weeks from February 8, 2017 to February 22, 2017.

Charlie underscores that AILA members should expect EB-1 to move at the lower end of the projected range of 0-2 months for EB-1 Worldwide and 0-1 months for EB-1 China and EB-1 India. Based on the continuing high demand, “minimal if any’ movement in the EB-1 categories is expected, and especially in EB-1 China and EB-1 India. The level of demand received after the publication of the projections in the February 2019 bulletin increased by over 50 percent during January, and the level received during the first three weeks of February exceeds that received during all of February 2018.

India EB-2 and EB-3 Remain Flipped:  The EB-2 India Final Action Date advances only three days to April 9, 2009 in March, whereas the Final Action Date for EB-3 India, which was already ahead of EB-2 India in February, advances a full month to May 22, 2009. Although the possibility of this inversion was hinted at for some time, this phenomenon only occurred in February 2019, so it is too soon to know if EB-2 downgrades will be filed, and if so, how that might impact the relative Final Action Dates between these two categories.

EB-2 and EB-3 China:  The Final Action Date for EB-2 China remains ahead of EB-3 China, and continues to advance at a faster rate, with EB-2 China advancing three months to January 1, 2016 in March, and EB-3 China advancing only one week to July 8, 2015 for March. Given the projected advancements and barring any changes in the demand trends, members can expect this to continue for the foreseeable future.

EB-3 Philippines:  Demand in this category continues to remain below the targeted level, requiring the Final Action Date for EB-3 Philippines to advance 4 months to December 1, 2017, in an attempt to generate demand.

Charlie is concerned that this rapid advancement might reflect a similar demand pattern to what this category experienced in FY2014 and early FY2015. At that time, the demand was similarly low. As such, the Final Action Date rapidly advanced. In the Spring of FY2015, a surge of demand in this category resulted in number use during a three-month period, equaling that of the entire previous year, requiring a more than 7-year retrogression in the Final Action Date for EB-3 Philippines. The FY2015 Final Action Date had, at one point, reached October 2014 for April. By May 2015 it retrogressed to July 2007, and ultimately ended the year at December 2004. The drastic retrogressions were required to stop all number use once the limit was reached, and it took many years to fully recover to the October 2014 date.

While Charlie is cautious about advancing the Final Action Date too quickly to avoid a reoccurrence of this type of retrogression, he cannot avoid advancing it where he does not see sufficient demand to meet the per country limit.

EB-4:  The Final Action Date for EB-4 El Salvador, Guatemala and Honduras holds at March 1, 2016 in March, and EB-4 Mexico advances 4 months to January 1, 2018.

EB-5:  EB-5 China advanced the Final Action Date by one week to September 8, 2014 for March. The Final Action Date had previously been advanced in January in anticipation of the Chinese New Year but processing was limited due to the sunsetting of the EB-5 I5 and R5 programs until very late in the month. Guangzhou is working to process as many cases as it can in February, but these may spill into March. EB-5 Vietnam has less demand with early priority dates and as such reaches a Final Action Date of July 15, 2016.

Family-Based Preference Categories:

FB-3 Mexico:  The Final Action Date for FB-3 Mexico, which has remained the same for the last few months, advanced slightly by 3 weeks in March to January 15, 1996. This movement was made possible by a decline in demand for cases being processed at Ciudad Juarez. Charlie did want to note that there is a potential for higher levels of demand pending final action at USCIS.

FB-3 Philippines and FB-4 Philippines:   Both FB-3 and FB-4 Philippines Final Action Dates advanced by more than 4 months and 3 months respectively in March. This reflects continuing low demand in these categories, despite a very large “pool” of applicants with approved petitions that have not yet acted on their case.

Program Reauthorizations and Timing of Visa Bulletin Issuance:

The Department of State published its March 2019 Visa Bulletin prior to President Trump signing into law the Consolidated Appropriations Act, 2019, which reauthorized the EB-4 Religious Workers (SR) and EB-5 (I5 and R5) categories. Members should refer to section D on page 8 of the March 2019 Visa Bulletin for the dates applicable to the EB-4 SR and EB-5 (I5 and R5). Specifically, in March, EB-4 SR is current for all countries except EB-4 SR El Salvador, Guatemala and Honduras, which have a Final Action Date of March 1, 2016, and EB-4 Mexico, which has a January 1, 2018 Final Action Date. EB-5 (I5 and R5) are current in March for all countries except EB-5 (I5 and R5) China-mainland born, which is subject to a September 8, 2014 Final Action Date, and EB-5 (I5 and R5) Vietnam, which is subject to a July 15, 2016 Final Action Date.

Changes to Methodology for Setting Application Filing Dates in the Family-Sponsored Categories:

As mentioned in prior columns, the Application Filing Dates (“Dates for Filing”) are a projection of where Charlie expects the Final Action Date to be about 8-12 months in the future. While this will continue to be the case regarding the Employment-Based (EB) Dates for Filing, the Dates for Filing in the Family-Sponsored Categories are being adjusted to more closely reflect where Charlie expects the Final Action Date to be within 3-6 months.

You may access the February 2019 Visa Bulletin here and the March 2019 Visa Bulletin here.

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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” (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.

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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.

Confused as to when you may file an I-485 Application for Adjustment of Status?

Beginning with the October 2015 State Department Visa Bulletin additional information appears pertaining to when an intending immigrant may file an application for adjustment of status.  This is specifically relevant to those for whom a visa number is not immediately available, such as those in the EB-2 Category from China or India, or those in the EB-3 Category from China, India, Mexico or the Philippines, among others.

In particular, the Visa Bulletin now includes “Dates for Filing” along with “Application Final Action Dates”.  (Please see my blog post, “October 2015 Visa Bulletin Includes New “Dates for Filing of Visa Applications”; Immigrant Visa Availability Procedures Revised to Permit Possible Earlier Filings” for details.)

The Immigration Service (USCIS) stated from the outset that it “may” (not “will”) use the Dates for Filing Applications to determine when an application for adjustment of status may be filed.  But, what does this mean?  How can one tell when the Immigration Service will permit an I-485 filing based on the Dates for Filing of Applications?  The answer can be found on the Immigration Service’s website at http://www.uscis.gov/visabulletininfo.

Here is a summary of the information:

  • Unless “otherwise stated” on the USCIS website, plan to use the Application Final Action Date.
  • The “otherwise stated” information will appear on the USCIS website in the following charts, which USCIS anticipates updating within a week of the State Department’s release of each months’ Visa Bulletin):
    • Current Month Adjustment of Status Filing Chart, and
    • Next Month Adjustment of Status Filing Chart.

Currently, both of these charts contains a statement noting that USCIS has determined that one may use the Dates for Filing Visa Applications chart.  So, for October 2015 and November 2015, the Dates for Filing Applications may be used.

Of course, these dates were significantly rolled back from the originally announced October 2015 dates. (See my blog post, “October 2015 Visa Bulletin:  Dates for Filing Revised, Rolled Back,” for details.)

Perhaps December’s Dates for Filing Visa Applications will be favorable.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

The procedures regarding immigrant visa availability have changed for the benefit of intending US permanent resident (i.e., greencard) applicants. These changes are reflected in the October 2015 Visa Bulletin which may be viewed at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html.

The US Department of State’s (DOS’s) monthly Visa Bulletin will now include two charts per visa preference category for Family-based and Employment-based applicants as follows:

Dates for Filing Applications (Sections 4.B. and 5.B of Visa Bulletin)

In Sections 4.B. (Family-Sponsored Preference Cases) and 5.B. (Employment-Based Preference Cases), “Application Final Action Dates” are listed.  The information in this part of the Visa Bulletin “reflects dates for filing visa applications within a timeframe justifying immediate action in the application process”.

Consular Processing/National Visa Center

If an immigrant visa applicant has a priority date that is earlier than the cut-off date listed in Section 4.B. or 5.B., the Visa Bulletin indicates that the US Department of State National Visa Center (NVC) will notify the applicant with detailed instructions to assemble and submit documents to the NVC.  The NVC accepts documents needed to process a greencard application abroad at a consular post of the US Department of State.

Adjustment of Status

The October 2015 Visa Bulletin also states that USCIS may use the “Dates for Filing Applications” chart (in lieu of the “Application Final Action Dates” chart in paragraphs 4.A. and 5.A.) to determine when an application for adjustment of status may be filed.  Adjustment applicants are directed to visit www.uscis.gov/visabulletininfo for more information.  This statement in the October 2015 Visa Bulletin is consistent with USCIS’s announcement today that each month it will “monitor the visa numbers and post the relevant DOS Visa Bulletin chart” on its website under “When to File”.  An intending greencard applicant can then use this information to determine when to file an adjustment application (Form I-485 Application for Adjustment of Status).  The “Dates for Filing Applications” chart may be used only when USCIS determines that additional immigrant visa numbers are available.  Otherwise, per USCIS guidance, the “Application Final Action Dates” chart must be used by intending Adjustment of Status applicants.  www.uscis.gov/visabulletininfo.

Implications

The dates in the “Dates for Filing Applications” sections of the Visa Bulletin are significantly further ahead of those listed in the September 2015 Visa Bulletin.  For example, in September 2015, the EB-2 India cut-off date was January 1, 2006.  http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-september-2015.html  In the October 2015 Visa Bulletin, “Dates for Filing Applications” chart, the cut-off date for EB-2 India is July 1, 2011.  The implications are clear.  Under the revised process, considerably more people should be eligible to file their visa applications at earlier dates than under the prior system.

As an aside, a “C” in the Dates for Filing Applications chart indicates that the category is “current”, i.e., that applications may be filed “regardless of the applicant’s priority date”.

Application Final Action Dates (Sections 4.A. and 5.A of Visa Bulletin)

In Sections 4.A. (Family-Sponsored Preference Cases) and 5.A. (Employment-Based Preference Cases), “Application Final Action Dates” are listed when the class is oversubscribed.  This may be specific to preference categories for a particular country or could affect all countries.

If a category is oversubscribed it means that “not all demand” for visas could be satisfied for that country/category.  These dates are now noted as the “dates when visas may finally be issued” as determined based on available data.

A “C” in the Application Final Action Dates chart indicates that the category is “current”, i.e., that visa numbers are authorized to be issued to all qualified applicants for that country/category.  In other words, there enough visas available to meet the overall demand.

A “U” in the Application Final Action Dates chart means that visa numbers are not authorized to be issued during that month for that country/category.

Keep in mind that visa numbers are only authorized for issuance to applicants whose priority date is earlier than the cut-off date listed in the Visa Bulletin.

* * * * *

The new processes, implemented as a result of President Obama’s November 2014 immigration executive action and the subsequent July 2015 report captioned “Modernizing and Streamlining Our Legal Immigration System for the 21st Century”, are expected to enable the Department of State to more accurately predict the visa demand and cut-off date information which it publishes in its monthly Visa Bulletin.  It is anticipated that these revisions will facilitate use of all available visa numbers per fiscal year and reduce monthly fluctuations in the “final action dates”.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.