Visa Bulletin: Further Updates from Mr. Oppenheim

Mr. Oppenheim, the Department of State Officer in charge of the Visa Bulletin has given the American Immigration Lawyer’s Association some addition information about the upcoming August bulletin as well as what the future brings for the Visa numbers.  Below is the text of what was told to AILA from Mr. Oppenheim:

FAMILY BASED VISAS

The F2A cut-off date will see advancement in September, possibly as far as late fall 2012. This can be attributed to the fact that the level of number use by applicants with priority dates which are significantly earlier than the established cut-off appears to have peaked, and is now in decline.

EMPLOYMENT-Based Preference Categories:

EB-3 China continued to advance, moving from October 1, 2006 to November 1, 2008. In June 2013, the priority date for EB-3 China (September 1, 2008) advanced beyond EB-2 China (July 15, 2008). This unusual trend continued, with EB-3 China advancing over the next several months through May 2014, when the priority date advanced to October 1, 2012. In June 2014, EB-3 China retrogressed by six years to October 1, 2006, where it has remained until July, when it will advance slightly to November 1, 2008.

USCIS received numerous EB-3 “downgrade” petitions for Chinese EB-2 beneficiaries seeking to take advantage of the more favorable EB-3 priority date. As a result, demand for EB-3 China suddenly doubled each month from January through March 2014, held for April, and when the June cut-off dates were established in early May, indications were that the April level would continue. The increase in EB-3 China demand caused the category to retrogress to October 1, 2006 in June 2014, in an effort to hold number use within the annual limit. That date was established based on a comparison of demand in previous months, and the numbers available for use during the remainder of the fiscal year (FY). The retrogression reduced the level of demand from the EB-3 “downgrade” applicants with very early priority dates, resulting in much lower than expected demand totals for EB-3 numbers during June and early July, thus allowing EB-3 China to slowly advance. The advancement was also influenced by a significant decline in China family-preference demand in recent months; such numbers can be provided for use in the employment preferences.

EB-2 India will retrogress in FY2015, and this could occur as early as November. The dates in the Visa Bulletin are driven by supply and demand for visa numbers and are based on a number of variables such as historical demand patterns, expected future demand patterns, expected return rates of unused numbers, information received from USCIS on expected processing, and National Visa Center (NVC) petition processing trends. Current USCIS filings based on forward movement of the India EB-2 cut-off may not result in a significant increase in requests for visa numbers until early FY2015. When that occurs, we can expect to see retrogression based on the need to hold number use within the annual limit. EB-2 India advanced rapidly towards the end of last FY and is expected to do the same this year, with continuing advancement expected. Those end of FY2013 filings comprise the vast majority of the cases which are (will be) resulting in the use of FY2014 numbers.

A “perfect storm” is brewing for EB-5 China. Based on the information available to him at the time of our discussion, Charlie predicts that it will be necessary to establish a China EB-5 cut-off date at some point during FY2015, possibly as early as June 2015. The need to establish a cut-off date will depend on a number of variables, such as staffing-up of USCIS adjudications and issuance of approvals, and the rate at which applicants attempt to finalize action on their case. Charlie expects a cut-off date for EB-5 China no later than summer 2015 (June-August) based upon the amount of approved petitions already on file at the NVC, and the potential for USCIS approvals to proceed at an even faster pace than expected. In addition to an increase in demand for visa numbers, the annual limit for this category is expected to fall from approximately 10,600 this year to approximately 9,900 based on the overall FY employment-based annual numbers. Compounding the demand is the concern of applicants over obtaining approval before the pilot program ends on September 30, 2015. It must be noted that in the past, this three-year pilot program has always been extended for an additional three-year period through legislative action, but sometimes this has not occurred until early in the next FY.

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