Charlie Oppenheim at the US Department of State issues visa bulletin predictions as to how rapidly or slowly he expects the priority dates in the employment-based and family-based categories to move forward, or to retrogress.
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Check-In with DOS’s Charlie Oppenheim (8-16-19)
Following a review of the dates listed in the September 2019 visa bulletin, the entire EB-3 category has immediately been made “unavailable” for the remainder of FY2019. This means that the annual limits have been reached on these categories and additional numbers are thus unavailable until the beginning of the next fiscal year. This status is not limited to EB-3 China and EB-3 India. It also includes, effective immediately, the EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, Philippines, and EB-3 Vietnam categories.
In addition to this change, it is also important to flag that several other categories are listed as unavailable for the remainder of the fiscal year including the entirety of EB-4 and EB-4 Religious Workers categories, as well as EB-1 India. EB-1 China is not listed as unavailable but did retrogress 2.5 years due to increased demand.
Unless otherwise advised, applicants should still appear for a scheduled AOS interview. There is a possibility that an officer decides to not proceed with the interview and/or reschedules it for another time. If the interview moves forward and the application is deemed approvable, the officer will request a visa number and that request will subsequently be sent to Charlie Oppenheim’s “pending demand file” at the Department of State. Once this occurs, the visa number will be automatically authorized for use by USCIS, effective the first day of the month in which the applicant’s priority date becomes current.
Check-In with DOS’s Charlie Oppenheim (7-18-19)
Question: We have heard rumblings from local USCIS field officers that the July 2019 Visa Bulletin is “no longer in effect” and the August 2019 Visa Bulletin is now applicable. I know there’s not a simple answer, but is that correct? If so, do you know whether USCIS will still accept adjustment of status (AOS) filings based on the July 2019 Visa Bulletin?
Answer: Beginning during the last two weeks of May 2019, the actual use of numbers by USCIS began to increase significantly in most employment-based categories. The most recent USCIS report of future demand for visa numbers (i.e., July through September 2019) indicated totals which could not be accommodated under the FY2019 annual limits.
What you heard is partially correct for the Employment Third (EB-3) and EB-3 Other Workers (EW) preference categories (only), where it was necessary to impose the August 2019 Final Action Dates on future requests for numbers to control number use within the annual limits for those countries. Prior to this happening, USCIS had already received July visa authorizations for all requests which had been subsequently submitted to my office, and for applicants with priority dates within the August dates. Additional corrective action will be required to control number use in particular preference categories on a Worldwide or individual country basis prior to the end of September 2019. In fact, it has just become necessary to make the India EB-1 preference “unavailable” for the remainder of the fiscal year.
USCIS will be able to continue processing such cases at their discretion and submit requests for visa authorization as they normally would. The difference is that cases which are not within the August Final Action Date will be held in my database pending future availability of numbers, most likely effective October 1, 2019. If the return of unused EB-3/EW numbers which have already been provided for July use (primarily overseas cases) were to permit such action, it is (remotely) possible that we could make some numbers available in September by slightly advancing the EB-3 Final Action Date.
Language in Section 1. of the August 2019 Visa Bulletin covers the possible need to take such corrective action:
Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by July 5th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The final action date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.
Question: Has there been an official announcement or notice about the August 2019 Visa Bulletin being put into effect on July 11, 2019? Does this apply to the Employment Fifth (EB-5) preference category?
Answer: As mentioned above, the August 2019 Final Action Dates have been imposed on the EB-3 and EB-3 Other Workers preference categories. This has been required to control number use within those annual limits.
There is no update to the Department of State web site when such action occurs as numbers have already been provided for use by applicants whose cases have been deemed qualified when the July 2019 Final Action Dates were announced. Subsequent applications were acted upon until the need for corrective action, as described in Section 1. of the August 2019 Visa Bulletin, became necessary.
Comment: USCIS’s inability to continue to issue immigrant visas in categories which would otherwise be current per the July 2019 Visa Bulletin but for the annual visa limit being reached does not necessarily prevent scheduled interviews from being conducted by USCIS. USCIS interviews that were already scheduled may continue in USCIS’s discretion.
Family-Based Preference Categories
Similar to last month, the August F-2A Final Action Date will remain current across categories, and the Dates for Filing for F-2A applications has been advanced. Charlie expects that, absent an unanticipated surge in demand, the F-2A Final Action Date will continue to remain current across categories through September 2019. Nonetheless, one should not expect this category to remain current for long. When the expected surge in demand materializes, it will prompt the imposition of a Final Action Date. This date will likely be sometime in 2017 or 2018.
The family-based (FB) Mexico preference categories continue to receive fairly sizeable demand for numbers from USCIS, impacting movement in those categories. In contrast, very low levels of overseas demand continue in many of the FB Philippines categories.
Employment-Based Preference Categories
Visa Bulletin Predictions:
Employment based demand has increased steadily since late May 2019 in the EB-1, EB-2, EB-3 and EB-3 Other Worker categories.
Whereas in past years, Charlie often predicted that employment-based preference categories which retrogressed towards the end of the fiscal year “would have a full recovery” in October (the beginning of the next fiscal year), his prediction in the August 2019 Visa Bulletin is much more guarded. Charlie merely indicates in Section D. of the August 2019 Visa Bulletin that “every effort will be made to return these final action dates to those which applied for July.” This means that while Charlie hopes that he will be able to bring these dates back to where they were in July, demand levels are so high and unpredictable, that one should not automatically count on a return to the July Final Action Date levels at the start of FY2020.
Charlie cautions that an immediate cut-off in visa usage, similar to that for EB-3 and EB-3 Other Workers, could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high for these categories. No forward movement in these Final Action Dates should be expected before October for certain employment-based visa categories. Any potential movement in these preferences would be subject to a change in the current USCIS demand pattern, and a larger than expected return of unused July numbers by overseas posts.
EB-1: Visa Bulletin Predictions
As predicted last month, the Final Action Date for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) retrogresses in August 2019 almost two years to July 1, 2016. The Final Action Date for EB-1 China, which was May 8, 2017 in July, joins the rest of the world countries in retrogressing to July 1, 2016 in August 2019. The Final Action Date for EB-1 India holds at January 1, 2015.
EB-2: Visa Bulletin Predictions
The week prior to Memorial Day, Charlie started receiving data from USCIS that was different than what he had received in the past. This data showed that demand in the employment-based categories started picking up, with the daily totals increasing quickly. For example, through May 21, 2019, 1,800 numbers were used in the EB-2 category. Between May 22nd and May 31st, another 1,300 numbers were used, with this high pace continuing into June. Not only is the actual demand high, but as mentioned earlier, USCIS’s projected future usage also remains high relative to the monthly demand targets for number use.
As a result of this high demand, all countries are subject to a Final Action Date in August. EB-2 Worldwide (including EB-2 China and EB-2 for all countries except for India) will have a Final Action Date of January 1, 2017, while EB-2 India advances one week to May 2, 2009.
EB-3: Visa Bulletin Predictions
EB-3 China Other Workers holds at November 22, 2007
The August 2019 Final Action Date for EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam remains at July 1, 2016. Charlie indicated that it is very difficult to say at this time whether these categories will become current again in October 2019. EB-3 India, which already had a Final Action Date, retrogresses further to January 1, 2006 in August.
Between April and May 2019, EB-3 demand increased over 25%. From May to June, the overall demand increased by more than 45%. During the first week of July 2019, EB-3 had already used 36% of the total numbers used during the entire month of June. This in turn necessitated immediate action to limit future number use by applicants with priority dates later than the Final Action Dates imposed for each country in the August 2019 Visa Bulletin. This is happening because number use is approaching the worldwide annual limit, and some countries have reached or are very close to reaching, their annual limits. USCIS interviews that were already scheduled may continue in USCIS’s discretion. If the application is approvable, rather than receiving a visa number, USCIS’s request for a visa number will be placed in Charlie’s pending demand file and will be authorized for use once the applicant’s priority date is once again “current”. Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner.
Charlie cautions that an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high.
The fact that demand has increased so dramatically is not a surprise to Charlie. What is unexpected is that it is happening much sooner than expected. Prior to FY2018, if such corrective action was required, it normally occurred in September. In addition, the issues that arose in FY2018 were attributed to the changes in USCIS processing of employment cases.
At a macro level, the fact that it may be necessary to limit/cut-off future use of numbers means that all of the numbers available under the applicable annual limits will have been used. However, for applicants for which the ability to immediately file an I-485 adjustment of status application is critical to remaining in the U.S., the retrogression may have significant negative impact.
EB-4: Visa Bulletin Predictions
The Final Action Date for EB-4 El Salvador, Guatemala and Honduras and EB-4 Mexico remains at July 1, 2016 for August 2019, with all other countries remaining current. While it is possible that there may be slight movement in these categories in September, it is unlikely. At present it is expected that EB-4 India will remain current through the end of FY2019.
EB-5: Visa Bulletin Predictions
In August, the Final Action Dates for EB-5 India and EB-5 Vietnam retrogress to October 15, 2014. Contrary to expectations which may have been set in blog posts, one should not expect EB-5 India or Vietnam to return to current status in October 2019. As with the retrogressions in the EB-1 category, going forward, EB-5 India and EB-5 Vietnam should be expected to have a Final Action Date imposed. Charlie unequivocally stated that EB-5 India and EB-5 Vietnam will not return to current status in October, and that both will be subject to Final Action Dates for the foreseeable future.
Diversity Visa Lottery: Visa Bulletin Predictions
The August Visa Bulletin posts results of the Diversity Visa (DV) Lottery for this fiscal year. All categories will be current for both August and September 2019. To the extent that the winners are eligible and promptly submitted their documentation and timely responded to any inquiries from the Kentucky Consular Center (KCC) and/or the consular post in order to be scheduled for interview, they should be able to receive their immigrant visas by the end of September 2019. Any such cases not finalized and approved by close of business (COB) September 30, 2019 will no longer be entitled to status or eligible to receive DV immigrant visas.
Since 1999, 5,000 DV numbers were offset to support the NACARA program. As there are very few remaining NACARA matters, going into 2020, the vast majority of these previously diverted 5,000 numbers will once again be available for usage under the DV program.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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