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.

___________________________

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.

___________________________

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” (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” (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.

___________________________

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” (May 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 June 2016 Visa Bulletin and his analysis of current trends and future projections for the various immigrant preference categories.

Family-Based Projections. In May, the final action dates for China and FB-4 India remained consistent with the FB-4 Worldwide final action date of July 22, 2003. As noted in the May Visa Bulletin and in previous editions of this column, it was anticipated that FB-4 India might retrogress as early as June and FB-4 China might retrogress by late summer.

As expected, FB-4 India will retrogress in June as a result of the high level of demand in this preference category. In addition, because FB-4 India number usage is so close to the annual limit, there is “no hope” that the current cut-off date of January 1, 2001 will advance for the remainder of the fiscal year. Similarly, due to extremely high demand, the final action date for FB-4 China will retrogress in June to January 1, 2003. However, unlike FB-4 India, there is still a possibility that the cut-off date for FB-4 China will advance before October.

Continue to Watch EB-4 and Certain Religious Workers (SR) Preference Categories. It is expected that the final action date of January 1, 2010 that was imposed in May for EB-4 and certain religious workers from El Salvador, Guatemala and Honduras will remain the same for the remainder of this fiscal year. This is necessary to ensure that numbers remain available for applicants from countries which have not yet reached their per-country limit for this category.

Last month we reported that it would be “extremely likely” that EB-4 India and EB-4 Mexico would also become oversubscribed during the summer. At this time, it appears that it will definitely happen, and that it is only a matter of when the retrogression will occur. When it does occur, a January 1, 2010 cut-off date will be applied.

The establishment of a cut-off date for EB-4 India and EB-4 Mexico is impacted by a lack of unused numbers that would otherwise fall down to these categories. Demand for EB-4 Mexico is driven by high levels of demand in Special Immigrant Juvenile (SIJS) filings. By contrast, demand for EB-4 India is driven by a number of factors, including demand for religious worker visas.

China EB-2 and EB-3. As reported in the May Visa Bulletin, the final action date for EB-2 China is September 1, 2012 and for EB-3 China, August 15, 2013. In previous months, we reported that EB-3 China would likely retrogress in June and that number usage would also stop at that time. In June, the final action date for both EB-2 and EB-3 China will retrogress to January 1, 2010. It is expected that this cut-off date will remain in place, thereby ending the downgrade phenomenon, at least through the end of this fiscal year.

EB-2 Worldwide and EB-2 India Demand. As a result of extremely high EB-2 demand, it has been determined that there will no longer be any “otherwise” unused numbers available for use in excess of the normal EB-2 per-country limit. While this has occurred in the past, it has not previously happened this early in the fiscal year. The EB-2 India final action date for May is November 8, 2008. As the combined EB-2 Worldwide and EB-2 India demand is expected to remain high, a retrogression of the EB-2 India final action date to October 1, 2004 was required for June. As noted in the June Visa Bulletin, Charlie predicts that the final action date may nevertheless advance slowly for the remainder of the fiscal year, consistent with the pace of EB-3 India advancement.

EB-2 India demand is partly attributable to EB-3 India upgrades. Visibility into EB upgrade and downgrade requests only happens at the time the I-485 is adjudicated and a visa number is requested. If visibility into demand for employment based visas was possible earlier in the process, retrogressions would not happen so abruptly.

EB-1 Demand and Impact to Other Categories. Demand for EB-1 Worldwide remains very high. As we cautioned last month, should the demand continue at this pace or increase, it is possible that some type of corrective action may be required before the end of the fiscal year.

You may access the June 2016 Visa Bulletin here and the May 2016 Visa Bulletin here.

https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-june-2016.html

https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-may-2016.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.

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.

 

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.

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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.

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.