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 (6-21-19)
Family-Based Preference Categories
The across the board advancement to “current” of the F-2A category is perhaps the most noteworthy update on the family-based side of the July 2019 Visa Bulletin. This advancement is attributable to a failure of applicants to respond to the NVC Agent of Choice letters. Interestingly, although the Final Action Date for this category is current, the Date for Filing is March 8, 2019. This was done to avoid completely opening the floodgates to consular filings in this category. Charlie noted that moving the Final Action Dates to current is intended to spur responses to the NVC letters but is not expected to have any impact on number usage for the current fiscal year (FY2019).
Movements in the Final Action Dates are often made slowly and carefully for some time in order to test demand before making any dramatic movements. To better understand why these movements are made, Charlie provides a “Party Invitation Analogy.” Moving the Final Action Date is like planning for a party. You may prepare a certain amount of food for your guests. However, when only a few people respond that they are coming to the party, you keep inviting more and more guests. Then, at the last minute, everyone you invited decides to attend the party and you don’t have enough food for everyone. That is analogous to a gradual and then rapid advancement in Final Action Dates followed by a flood of demand that requires a retrogression. This is what Charlie believes could potentially happen at some point after making this category current.
Employment-Based Preference Categories
General Trends and Observations:
In the July 2019 Visa Bulletin, Charlie modifies previous projections for EB-1, EB-2 and EB-3 Worldwide, based on new data received from USCIS. This data reflects a rapid increase in actual demand across these categories that has materialized over the past 2.5 weeks, and projections of continued higher levels of demand during the summer than had been experienced through mid-May.
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) remains the same at April 22, 2018. Furthermore, Charlie predicts that there will be retrogression in this category as early as August 2019. If demand trends allow, the goal is that the Final Action Date in this category will return to the current level (i.e., April 22, 2018) in October 2019.
The Final Action Date for EB-1 India remains the same at January 1, 2015. No further forward movement will occur in this category during FY2019. If possible, Charlie’s goal is for EB-1 India to return to a Final Action Date of February 22, 2017 in October 2019.
EB-1 China will advance approximately two months to May 8, 2017 in July. No additional forward movement is expected in this category for the remainder of FY2019. This preference may also become subject to the corrective action that Charlie mentions above for EB-1 Worldwide. The reason why EB-1 China was able to advance in July is that, unlike India, China has otherwise unused numbers in the EB-4 category that “fall up” to EB-1 to allow additional number usage. In contrast, there is sufficient EB-4 India number usage which restricts the ability to have unused numbers “fall up” to EB-1 India.
Charlie expects that going forward EB-1 Worldwide, EB-1 China, and EB-1 India will have distinct Final Action Dates. He also expects that the Final Action Dates for EB-1 China and EB-1 India will differ, with both lagging behind the Final Action Date for EB-1 Worldwide.
The week prior to Memorial Day, Charlie started receiving a different demand pattern from USCIS than what he had received in recent months. During this time, the demand in the employment-based categories began to pick up, with the daily totals increasing quickly. For example, through May 21, 2019, approximately 1,800 visa numbers were used in the EB-2 category, and between May 22, 2019 and May 31, 2019, another 1,300 numbers were used. The June 2019 pace of demand continues to be higher than earlier in FY2019. This is in combination with USCIS’s projected high summer usage.
Based on this data, whereas Charlie previously believed EB-2 Worldwide might remain current through FY2019, this no longer remains the case. Charlie now anticipates that this category will have a Final Action Date imposed during FY19, and possibly as early as August 2019. At this time, he is unable to predict how far back the date imposed might be. As Charlie knows how many numbers remain available and how many USCIS predicts will materialize, he will continue to watch the demand in this category very closely. While it is possible that the Final Action Date for EB-2 Worldwide will hold in August 2019 and be limited to September 2019, AILA members are cautioned to file any current cases through the month of July 2019, as it is unclear whether these priority dates will still be current in August 2019. Charlie’s goal is, if possible, to return the Final Action Date for this category to current in October 2019
In July, EB-2 China advances three months to November 1, 2016. Charlie predicts that this category may share a Final Action Date with the EB-2 Worldwide category, if corrective action is required for EB-2 Worldwide in August 2019.
EB-2 India advances 5 days to April 24, 2009 in July. Charlie predicts that this category will continue to advance at a pace of up to one week until the limit is reached.
As with EB-2, Charlie is starting to see heavy demand in the EB-3 category, in addition to USCIS projections for additional demand. This demand is causing similar changes in the projections for this category.
Whereas Charlie had been predicting that EB-3 Worldwide (including EB-3 El Salvador, Guatemala and Honduras and EB-3 Mexico) seemed likely to remain current through FY2019, that is no longer the case. Charlie has now modified his prediction and expects retrogression at some point during this fiscal year, perhaps as early as August 2019.
EB-3 China advances 3.5 months to January 1, 2016 in July, and EB-3 China Other Workers advances about two months to November 22, 2007. Charlie continues to predict advancement of up to several months for the EB-3 category.
The Final Action Date for EB-3 India continues to hold at July 1, 2009, with little if any forward movement predicted in the immediate future. Last year, action on all of the pre-adjudicated EB-3 India numbers from the 2007 Adjustment of Status filings were finalized. Charlie’s only visibility to the demand in this category comes from new filings, which are coming in at a steady pace. Part of the reason that this category was allowed to advance is that Charlie assumed that the rest of the world numbers would not be used, as had been the case for the past five fiscal years. However, this year there are no extra EB-3 numbers available from other countries to transfer to EB-3 India.Therefore, in order to limit future use of numbers, any required corrective action for EB-3 Worldwide will also impact the Final Action Date for EB-3 India.
As recently predicted, EB-3 Philippines will become current in July 2019, advancing from the June 2019 Final Action Date of November 1, 2018. However, Charlie expects this category to reflect the EB-3 Worldwide date, meaning that there may be a short window for applicants to file between now and the end of July 2019, when the Final Action Date for EB-3 Worldwide may retrogress.
As noted in the last column, EB-4 will remain current in July 2019 for most countries, with the exception of El Salvador, Guatemala and Honduras and Mexico, which advance to July 1, 2016 in July, due to the use of otherwise unused numbers from other countries. These countries should hold at this Final Action Date through FY2019.
Demand for EB-4 India numbers has dropped off and the pace of usage has slowed. It still appears likely that this category will remain current during FY2019.
In July 2019, a Final Action Date of May 1, 2017 is imposed for EB-5 India, which had until now been current. Charlie expects EB-5 India to continue to be subject to a Final Action Date moving forward. The EB-5 China Final Action date will hold at October 1, 2014, and EB-5 Vietnam will hold at a Final Action Date of October 1, 2016. All other countries remain current for this category. In August and September 2019, EB-5 India and EB-5 Vietnam are expected reflect the same Final Action Date as EB-5 China.
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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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