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.

Congress in 2015 tried to tackle new EB-5 reform legislation, but instead chose to extend the program without any changes until September 30, 2016. This was a result of an impasse on issues relating to increase in the capital threshold amount and the change in the metrics used to determine what is a (“TEA”) targeted employment area. The contentious debate on these issues provided both developers and regional centers one more year of status quo in the program.

What will happen this year is anyone’s guess. What we do know is that Congress is holding hearings on EB-5 reform. These hearings provide the opportunity for individuals in the EB-5 industry to voice their opinion as to the future of the program.

On Wednesday April 13th 2016, the Senate Judiciary Committee held its second hearing of 2016 on the EB-5 Program titled, The Distortion of EB-5 Targeted Employment Areas: Time to End the Abuse.  The Senate Judiciary Committee heard from several witnesses including the Executive Director of IIUSA, Peter Joseph.  IIUSA is the national non-profit trade association representing EB-5 developers, regional centers and other professionals that are in the EB-5 space. Peter Joseph in his testimony pointed to several critical issues that the Committee should consider in the long term reauthorization of the EB-5 legislation. Those issues include:

  • Increase visa capacity to enhance economic impact of EB-5 and address the backlog of

investors currently waiting for visas to be available.

  • Staff commercially viable processing system at USCIS that addresses existing backlogs

and prioritizes predictability and length of processing times for EB-5 related petitions and

applications.

  • Avoid retroactive application of new law and reform to protect the existing EB-5

investors and their families and the billions of dollars in financial commitments and

contractual obligations.

  • Ensure all EB-5 investors with petitions currently filed, or at a later stage in the EB-5

process, are guaranteed adjudication (not approval) and eligibility for immigration

benefits throughout the entire EB-5 process (I-526 petition, EB-5 visa issuance, and I-829 petition)

regardless of future reforms, lapses, or expiration of the program.

  • Continue to allow economic impact models including indirect/induced job creation to

count for EB-5 purposes (using the same econometric models that are generally accepted

as economic policymaking tools by government, academia, and business).

  • Improve program integrity, including through enhanced oversight and reporting

requirements of Regional Centers that are not unduly burdensome, such as site visits

funded by user fees.

  • Clarify geographic (including targeted employment areas (TEAs)), structural, and

industry project characteristics that enable consistent adjudication of EB-5 petitions and

applications.

The issues that Peter Joseph mentioned in his testimony on Capitol Hill clearly mirror the position that most in the EB-5 industry have taken on EB-5 reform. The program has been largely a success with a substantial amount of foreign capital being invested in job creating projects in the United States. Everyone in the EB-5 space would like to see an extension of the EB-5 legislation for at least a five (5) year period.

Since 2008, the Program’s annual contribution to foreign direct investment inbound into the U.S. grew over 1,200% to total almost $5 billion in fiscal year 2015 alone. This investment capital is creating tens of thousands of jobs for U.S. workers in diverse communities by funding projects in a wide variety of industry sectors across the country.

Will Congress take any action this year to reform the current EB-5 legislation? I believe not.

This is a Presidential election year. It is very likely that Congress will defer on making any substantive changes to the EB-5 program until 2017. Immigration reform legislation has never passed both houses of Congress in an election year.

The economic benefits of the EB-5 program are not in dispute. The major issue that Congress needs to address is improving the compliance portion of the legislation. This will provide transparency to the program. Something that is much needed.

 

Since September 30, 2015 Congress has considered several immigration bills that would have completely overhauled the EB-5 program. All of us in the space, especially attorneys, had prepared ourselves for the inevitable change of the current EB-5 regulations. We all knew that the minimum capital threshold requirement would increase to $800,000. In addition, the targeted employment area (“TEA”) definition would change, thereby eliminating important metropolitan areas such as New York City from consideration. All of this was occurring against the backdrop of Congress trying to pass the appropriations bill so that our government would not run out of money.

Congress has been wanting to revamp the EB-5 program for a significant period of time. All of the recently introduced EB-5 bills contained measures to increase compliance and make the program safer for foreign investors that were seeking a “Green Card”.  Developers and attorneys lobbied for reform that would not be onerous and would provide a certain amount of compliance. Most of us did not want the new legislation to be the “death knell” of the EB-5 program.

Well, we all got our wish. Congress voted to renew the EB-5 program in its present state until September 30, 2016.  What will happen between now and the expiration of the legislation is anyone’s guess.  But I think the writing is on the wall. Congress seeks to reform the EB-5 program on two fronts. The first is the minimum investment capital threshold requirement. It is a foregone conclusion that prior to September 30, 2016 Congress will pass EB-5 legislation that increases the minimum investment in a targeted employment area (“TEA”) to $800,000. The second is on the compliance front. Congress will include provisions in the new bill that require “on-site audits” of projects and regional centers.  In addition, Congress will require all principals that have equity in a regional center to submit to a Federal background check. This will ensure that the players in the EB-5 space are not unscrupulous characters.

All in all, the changes would be welcome by most in the industry. The impact that the higher investment amount would have in China and other markets is something that is yet to be seen. All of us though are breathing a sigh of relief for the EB-5 extension.

 

As Congress works to pass renewal legislation to the EB-5 Regional Center Pilot Program that will expire on December 11, 2015, most observers in the EB-5 space have no idea what will happen. Initially most of us thought that Congress would not have the time to review and vote on several new bills that would overhaul the program. Everyone guessed that Congress would “punt the ball” and pass interim legislation extending the program again until May 2016. Well as of this afternoon, it looks like Congress might actually pass one of the bills. The bill that looks most likely to pass would completely redefine the requirements of an eligible EB-5 regional center based project. The minimum capital threshold requirement would jump from $500,000 to $800,00 for a project in a TEA census tract. A project developed in a non-TEA census tract would stay at $1,000,000.

The bill contains a 5 year extension of the EB-5 Regional Center Pilot Program. It also includes an enhanced compliance provision. The compliance section of the bill provides for annual site visits by USCIS personnel. USCIS personnel would be authorized to request job creation documents from the project developer and/or regional center. It would also require that ownership of regional centers be limited to individuals who are nationals or permanent residents of the United States.

Greater compliance and transparency in the EB-5 program translates into a new background check that would be required of all principals of regional centers. As a result, no person shall be permitted to be involved with any regional center, new commercial enterprise, or job-creating entity if the person has been found to have committed  a criminal or civil violation involving fraud or deceit within the previous 10 years; a civil violation resulting in a liability in excess of $1,000,000 involving fraud or deceit; or a crime resulting in a conviction with a term of imprisonment of more than 1 year. The bill also limits ownership of regional centers where the principal has a final order entered by the U.S. Securities and Exchange Commission for a violation of law or regulation involving fraud or deceit.

As part of the bill’s compliance provision, principals of regional centers would have to execute an attestation that would certify that their regional center was in full compliance with all SEC regulations. All regional centers will have to pay an annual fee in order to continue with their USCIS designation. The fee for regional centers that have 20 or more investors the preceding year shall be $25,000.00 Those regional centers with less than 20 investors shall be $10,000.

Also, the ability of investors to receive funds that have been gifted will be restricted. Gifted funds may be counted toward the minimum capital investment requirement only if such funds were gifted to the alien investor by the alien investor’s spouse, parent, son, or daughter, but not children, sibling, or grandparent and such funds were gifted in good faith and not to circumvent any limitations imposed on permissible sources of capital.

A bit of good news in the bill is that census tracts can still be combined (up to 12) and averaged in order to qualify a geographic area as a TEA. This seems to be a concession made to important metropolitan areas such as New York City that have benefitted from the EB-5 program.

The EB-5 picture should be come clear by the end of this week as Congress wrestles with a challenging task, an overhaul of the EB-5 Regional Center Pilot Program.

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What will Congress do with the soon to expire EB-5 regional center program?

That is the question that most everyone in the EB-5 world is asking each other. Congress chose on September 30th of this year to “kick the proverbial can down the road” until December 11, 2015 with an interim extension of the current legislation. As of the date of the writing of this blog Congress has before it several bills that seek to extend the EB-5 Pilot Program.

The possible changes on the horizon include increasing the minimum investment amount to $800,000.00 for TEA’s and $1,200,000.00 for other areas. Since there has been no change in the capital contribution amount since the creation of the program, most think this amendment will proceed.

The other change that would be controversial would modify the definition of a targeted employment area. The TEA’s would be limited and potentially not include state designations based on aggregated census tracts. This could eliminate many TEA’s.

In addition, it is anticipated that the regional centers will come under greater scrutiny by USCIS. This could include more comprehensive and frequent reporting requirements, as well as the ability of the agency to suspend regional center designation for those centers that do not fulfill reporting requirements or have little or no business activity.

Congress will also examine whether regional center principals can be non-resident aliens. Most regional centers currently are owned by U.S. Citizens or lawful permanent residents.  There are many non-resident aliens that are interested in creating regional centers and developing projects, especially in South Florida.

Developers, as well as investors are rushing to complete exemplars for projects and file individual I-526 immigrant visa petitions in order to “grandfather” their projects and/or investor applications under the present statutory requirements. It is noteworthy however, that no one is certain that “grandfathering” will be part of the final legislation. Will this all be for naught?

What we can be sure of are that changes to the EB-5 regional center program will occur before the end of the year. The changes to the program will hopefully make it better. The program will survive.

 

CNN Money reports that DHS is being showered with flower deliveries in nonviolent protest against the government’s issuance of a revised October 2015 Visa Bulletin (http://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html).  According to the article, a card on one of the flower deliveries read: “[The] Visa Bulletin reversal has caused irreparable harm to our families. We ask you to not inflict injustice on us for no fault of ours.”

You can find more information about the Oct. 2015 Visa Bulletin “Rollback” in my blog post of Sept. 28, 2015.

CNN’s Article is reprinted below:

The Department of Homeland Security is being showered with flower deliveries, a very peaceful protest over a major snafu that has left thousands of immigrants in limbo. The problem began on September 9 when many immigrants checked the State Department’s website for its “Visa Bulletin,” which is updated monthly and which immigrants monitor closely.  That day they got an amazing surprise: Far more people discovered they were eligible to file for the last step of the green card process.  This step in the green card process grants flexibility to change jobs or travel outside the country.  The change impacted thousands of immigrants in the U.S., most of whom are on H-1B visas — the most common visa for high-skilled foreign workers.

On September 25, the State Department issued a revised bulletin: It flubbed and thousands of immigrants would no longer qualify. Immigration lawyers say as many as 50,000 applications were no longer eligible with the change.  Nearly two weeks later, the State Department has given little explanation other than to say the change came after consultation with the Department of Homeland Security. According to a spokeswoman for the Department of Homeland Security, “Further analysis of a recently published Visa Bulletin, intended to improve the issuance of green cards, showed that some of the new filing dates in that bulletin did not accurately reflect visa availability.”  Unsatisfied, the affected immigrants are protesting.  The flowers are just one form, with a card to Jeh Johnson, Secretary of Homeland Security, that read: “Dear Honorable Jeh Johnson, DHS Visa Bulletin reversal has caused irreparable harm to our families. We ask you to not inflict injustice on us (legal immigrants) for no fault of ours. Please fix October Visa Bulletin. We wish you the very best.” The effort is meant to channel the nonviolent protest methods of Mahatma Gandhi.

Flower Protest

Thousands of flowers have been delivered to the Department of Homeland Security, according to Immigration Voice. There is also a lawsuit. Three lawyers filed a class action complaint last week against the Department of State, Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), Secretary of Homeland Security Jeh Johnson, and Secretary of State John Kerry.

The cost for affected immigrants is real. Families spent anywhere from $2,000 to $5,000 each preparing applications, which would have been due last week.  “We started making plans,” said 45-year-old Sridhar Katta, a mechanical engineer and M.B.A. who lives in Seattle with his wife and 16-year-old twin boys. “All our hopes were dashed within a matter of days.”  According to Vikram Desai, co-founder of a nonprofit group called Immigration Voice, over 150,000 people — including himself — were impacted by the revised bulletin because family members should be counted too.  Desai said the impact is even greater: “The total number of people stuck in green card backlog is over 1 million … there’s something fundamentally broken.”  The green card backlog can mean that it takes some immigrants anywhere from 10 to 70 years before obtaining citizenship. Each year, there are just 140,000 green cards available for foreign workers in the U.S. There are quotas for certain countries and skill levels. The backlog is particularly high for Chinese and Indian citizens.

“The lack of transparency in how [the government] is reaching a decision and managing this process is a significant frustration for the immigrants,” said Lyden Melmed, a partner at Berry, Appelman & Leiden in Washington who previously was Chief Counsel of the U.S. Citizenship and Immigration Services. “They absolutely could and should release all of their calculations.”

Desai said they are hoping for a statement from the Department of Homeland Security as soon as this week. “I don’t know what the consequences were that they have to backtrack,” said Tahmina Watson, an immigration attorney in Seattle. “This is the worst miscalculation they could do … Don’t say anything if you’re going to change it.”

___________________________

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 a move that has crushed the hopes of untold numbers of would-be applicants for US permanent residence, the US Department of State (USDOS) issued a revised October 2015 Visa Bulletin which dramatically set back the new “Dates for Filing Applications”.  See http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.

The revised October 2015 Visa Bulletin was issued last Friday, September 25, 2015, and supersedes the October 2015 Visa Bulletin that was issued on September 9, 2015.

As a result, the following categories now have later filing dates as indicated:

Category                  NEW Filing Date

EB-2 China…………..1/1/2013 (back 1 year and 5 months from the original October 2015 Visa Bulletin)

EB-2 India……………..7/1/2009 (back 2 years from the original October 2015 Visa Bulletin)

EB-3 Philippines…..1/1/2010 (back 5 years from the original October 2015 Visa Bulletin)

FB-1 Mexico…………..4/1/1995 (back 3 months from the original October 2015 Visa Bulletin )

FB-3 Mexico…………..5/1/1995 (back 1 year and 5 months from the original October 2015 Visa Bulletin ).

This means that an intending greencard applicant may only file an adjustment application in October 2015 if his or her priority date is earlier than the Date for Filing as listed in the revised October 2015 Visa Bulletin (the one that was released on September 25, 2015).

It’s impossible to tell how many people were fervently working toward preparing adjustment applications AND making life decisions based on the previously issued Dates for Filing.

As they say, “easy come, easy go”, but this just doesn’t seem fair.  Questions are also being raised regarding the legality of this unexpected move.

_________________

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

In follow up to my post of 9/17/2015 in which we explained the Department of State’s new procedures for establishing immigrant visa filing dates (vs. final action dates), please be advised that the DOS has updated those dates (on 09/25/2015).  Anyone who plans to file for Adjustment of Status in October 2015 must review these new dates to determine if they are still eligible to file.

Please see below for the new information posted on the DOS’s website in reference to the October 20015 Bulletin:

“Immigrant Numbers for October 2015 

Revised September 25, 2015 

This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and contained Dates for Filing Applications long used by the Department of State for internal processing purposes. Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process. The Dates for Filing Applications sections (sections 4.B. and 5.B.) which have been adjusted have been identified in Bold type.

Please be advised that DHS will rely on this revised bulletin, rather than the bulletin published on September 9, 2015, when considering whether an individual is eligible to file an application for adjustment of status.”

___________________________

Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.