DOS Q & A on July Visa Bulletin

This month’s chat with Charlie provided some valuable insight on how the Visa Bulletin will advance throughout the rest of the year. First, we’ll provide the quick highlights, followed by comprehensive notes on the Q & A session.

Highlights

  • Family preference dates will advance through September and overseas processing at consular posts is improving.
  • Employment preference dates will advance, but “slowing the rate of future advancements helps minimize the chances of any potential retrogression further down the road in fiscal 2022.”
  • No retrogressions are expected of employment Final Action Dates in the foreseeable future.
  • EB-5 China Final Action Dates will remain the same, but could move in October or November.
  • The fiscal year 2022 limit is going to be at least 290,000, a second all-time high in a row.
  • If holding multiple I-140s, such as EB-2 and EB-3, applicants are only counted in one category because they would only be reported to the Department of State when documentarily qualified. USCIS requests a visa number from DOS by providing the applicant’s A number, priority date, visa category, and foreign state. DOS will only act to allocate a number to one individual with that A number.

To view the current and upcoming Visa Bulletins, you can visit these links:

Q & A with Charlie Oppenheim

Please note: Questions and answers have been paraphrased in some cases and should not be interpreted as verbatim quotes.

Charlie Oppenheim has been with the State Department since 1978 and has been the Chief of the Immigrant Visa Control and Reporting division in the Office of Domestic Operations since 1998. The division’s main responsibility is the administration of the annual numerical limitations on immigrants, subdivided by preference category and country as provided by the Immigration and Nationality Act. This division then publishes the Visa Bulletin which summarizes the availability of visa numbers for the coming month, as well as providing other visa-related information.

Do you expect that the worldwide family preference dates will continue to advance through September?

Yes, the improving conditions have allowed increased overseas processing, therefore the July dates were advanced at an accelerated rate in most preferences and for most countries, with the movement of the dates through September might be somewhat more limited. The Mexico dates were advanced at a very fast pace for the family categories and that was because number use in recent months has not been as much as anticipated but based on the previous movement of the dates and we wanted to make sure that we maximized number use. The Philippine family dates were basically held with the exception of the fourth preference because there, the previous movement of the Final Action Dates had generated sufficient numbers under the annual limits so therefore we did not need to continue moving any except as I said the fourth preference.

In the July bulletin the worldwide family fourth preference date is listed as February 8, 2007. What does that mean?

Applicants who have submitted all of the required documentation that has been requested of them and have a priority date before February 8, 2007 would be eligible to have their final interviews scheduled either at an overseas post or processed by the USCIS offices here in the states. Whenever you see a priority date listed, it represents the priority date of the first applicant who we could not accommodate for processing during that applicable month. It’s important to remember that not everybody with a priority date earlier than the listed Final Action Date has been processed. Applicants process their cases at their own pace and convenience and therefore fluctuations in demand sometimes impact future movement of the dates, as is evidenced by the Philippine dates basically being held for July.

Do you expect that the employment preference dates will continue to advance through September?

I believe that they will have some advancement through September but at this time I really can’t estimate how fast that will be, but I do not expect there to be any retrogressions of employment Final Action Dates in the foreseeable future and managing and slowing the rate of future advancements helps minimize the chances of any potential retrogression further down the road in fiscal 2022.

Do you expect that any of the family-sponsored or employment-based application filing dates will retrogress during FY 2022?

No, I do not expect that any retrogression of the Application Filing Dates or Final Action Dates will occur in the foreseeable future. Some of the dates will be advanced in the coming months, but at this time, as I mentioned earlier, it’s not possible to really estimate the rate at which they will advance. It’s important to remember that the Application Filing Dates are the dates which I believe the Final Action Dates will reach at some point during Fiscal 2022.

Can you explain what it means when current is listed at in the Visa Bulletin?

If there’s sufficient numbers in a particular category to satisfy all of the reported demand at the time I’m making the determination of the upcoming month’s Final Action Dates, then the category can be considered current. For example, if it if I determine that I have 3,000 numbers that are available for use during the month of July and there’s only demand for 1 000 applicants then I can list the category as being current.

When do you expect the consulates around the world to be fully functional like before the COVID-19 pandemic?

This is the $64,000 question everybody wants to know the answer to and it really is not possible to provide an answer. The overseas posts have been slowly returning to some level of operational status as their local conditions permit, but because of the constantly changing status, the best advice it can offer is for the listeners to monitor the operational status of the post which is going to be responsible for processing their case and you can find that on our travel.state.gov website. That will have typically the latest and greatest information on each post’s status.

Note from consular officer: We’re definitely updating travel.state.gov on a regular basis with any sort of information that’s coming forward regarding policy or visa services.

Why doesn’t the State Department provide estimated wait times before a visa will be available for applicants in the various categories?

In a normal processing year, I tried to provide such updates about every three to five months and I put them in the Visa Bulletins with an item regarding visa availability and that usually covers what will happen in the next three to five months. Like I said earlier, it’s important for people to remember that the applicants become qualified at their own pace and therefore it can have some fluctuations in the dates. I really haven’t provided updates during the last part of fiscal year 2020 or for the fiscal year 2021 because of the constantly changing situation or processing capability at both our overseas post and in the USCIS offices.

When determining number use under the various annual limits, are only the principal applicants counted?

No, there is both the principal applicant and all derivatives – a spouse, any children, are each counted against the numerical annual limits.

The EB-5 China application Filing Date remains the same as it was in October 2020. Do you expect any forward movement in that date prior to the end of the fiscal year?

No, I do not expect any forward movement of the China application date before September. There is likely to be some movement in October but right now we have sufficient demand to utilize all available numbers under what the China limit would be, and unless larger amounts are processed during the summer, we will have a sufficient number moving into fiscal year 2022. Again, we may see some movement of that EB-5 Application Date for China in the month of October or November.

Do you expect that the fiscal year 2021 family, employment, and diversity visa annual limits will be reached?

Based on the impact with the COVID-19 issues we’ve had on the processing of cases, it’s really too early to say what number use might be, but I can say that both the family and employment Final Action Dates and the diversity visa ranked cutoff numbers continue to be established in an attempt to generate sufficient demand to maximize number use under the various annual limits. We’re following the same process in that determination that we would during a “normal” processing year.

Why would either the State Department or USCIS request that an applicant submit or update information if their priority date is not yet eligible for processing?

Well, the State Department uses the Application Filing Dates for our National Visa Center to contact applicants that may become eligible for final action on their case within the next eight to 12 months and they request the applicants to assemble and submit certain required documentation so that the applicant can become what we call documentarily qualified after a review of all the documents. Then that demand is reported to the visa office for consideration in the movement of the upcoming month’s Final Action Dates. The USCIS may request that adjustment of status applicants whose case had previously been processed but not finalized. For example, one of the cases is when the Final Action Date may have retrogressed, the applicant was in some stage of processing when the date retrogressed, so they could not be finalized. So the Immigration Service may when they feel that the applicant is nearing eligibility to be processed once again, they may request the applicant provide certain required information, such as a medical, etc. to update, so that it can be processed when the date does advance.

In both instances having all the required information and current information, for example again, the medicals, can expedite the final processing of the case once a visa number does become available. It’s important for    applicants to remember that they should not wait until their turn has come up because processing can take some time, so they’re better off if they go ahead and provide all the requested information in advance so that their case can be scheduled is in an expeditious manner.

With the slow pace of adjudications in the first two quarters of this fiscal year, do you foresee that the dates in the Filing chart will reach the dates in the Final Action chart by the end of the fiscal year?

I think that most of the Application Filing Dates that were announced and posted in October have already been reached in most instances. Any of the Application Filing Dates that are changing now or in recent months, there should be no reason to expect that they’ll be reached this fiscal year, but eight to twelve months down the road they could be reached. Again, the Application Filing Dates are always where we think the Final Action Dates will be 8 to 12 months after we have originally posted those Application Dates.

Does a case enter the queue for being interviewed after being documentarily qualified, even if their priority date is not current?

Yes, and that’s what I said it’s very important for me to have maximum visibility of potential demand for applicants whom the National Visa Center has contacted, primarily in the family categories, to act in a timely manner, submit all the required documentation, and what happens on a monthly basis, the national visa center reports to my office all of the applicants who have been become documentarily qualified since the last reports were submitted approximately a month earlier. The cases are only reported one time and then we hold that information and use it in the determination of the movement of the Final Action Dates and then once a person’s priority date falls within the Final Action Date, then their case is immediately provided a number and the National Visa Center would be scheduling their case. That’s why I say applicants really need to act on their case in a timely manner when they’ve been requested information, because they may have been contacted say by the National Visa Center in March to assemble documents. If the applicant had done so and been reported to my office and their priority date was reached for the month of July, they could be potentially scheduled for an appointment in July. If they waited until their priority date was reached to begin submitting the documentation, it’s going to take several months before they potentially could be scheduled so it’s very important for people to act in a in a timely manner.

Will EB-2 India reach July 2012 priority in October 2021?

The India the second preference will continue to advance some, but I can’t speculate at this time where it will be in October. I do believe many of the China and India dates will be advancing and they may advance at a rapid pace early in the fiscal year before we start holding back on some of the movements. It’s because at this time we expected the fiscal 2022 employment limit to be at least 290,000, a second all-time high in a row, so we’re trying to make sure that we can generate sufficient demand to utilize all the available numbers.

How are priority dates determined? Is it based on the approved I-140 for that particular year?

It’s based on the amount of documentarily qualified demand which is has been reported to me on a monthly basis. If you think of the numerical control process is your household budget for the year and your employer were to hand you a check for your pay to represent the entire coming 12 months on October 1, so what you want to do is you look you have housing expenses, you have insurance, you have a variety of expenses that you have to budget for, and your goal is to reassess your estimates on a monthly basis to re redistribute the money you may have, to take some money away from one area and can add it to another, or across the board if your estimates on your needs for the previous months have been. Your goal is to use all of the money because at the end of 12 months, although you cannot exceed that amount of money, if you haven’t used it all you have to return any leftover money to your employer, so your attempt is to try to maximize number use.

That’s what I do I look at the annual limits: I establish targets of how many numbers I want to utilize on a monthly basis by preference category and within the preference categories often for particular countries under their country limit and I weight the allocations typically higher and heavier during the first eight to nine months so that we can kind of ease into the end of the fiscal year without having to have a surge in movement of the date and heavier number use. You will see during the eight first night eight to nine months the dates will move faster, then typically July through September they will kind of slow down or hold, or as somebody asked earlier about retrogressions, retrogressions would typically occur in August or September when we’re nearing the limit and are running out of numbers. We always try to limit retrogressions to the last month or two of the fiscal year because we know that is a tremendous inconvenience to applicants to have their cases in some form of processing, so our attempt is to minimize any inconvenience and then do a full recovery if whenever possible for the month of October.

So in that analogy, the money that you’re budgeting is analogous to the visa cases, correct?

Right, and for example, if we had 12,000 numbers and my target was to use a thousand each month, if I was using more or less then I would have to adjust how many numbers I was giving out in subsequent months.

Will USCIS start to adjudicate more EB I-485s in the last two quarters and also, how much movement can we expect in EB-2 and EB-3 in the upcoming months? So the USCIS question, perhaps we can’t answer, but on the movement of EB-2 and EB-3?

Yes, the EB-2 and EB-3 dates will continue to move somewhat. I’m not sure in terms of how much in the third preference. The third preference category has been reported to me by USCIS as the one category which they had the highest rate of new filings last fall, so they have a huge amount of cases in that category that they’re going through. I can say that the USCIS offices across the country are maximizing their processing capacity. They’re doing their best and every effort is being made to fully utilize all the enough numbers. It’s important to remember that this fiscal year 2021 employment annual limit is approximately 262,000. In a typical year, the employment limit would be in the 140,000 to 155,000 range average, so this is a huge increase, you know well over a hundred thousand extra numbers that they have for potential processing with limited staff. They didn’t suddenly get an influx of staff just because we had more numbers available this year. That’s a very important thing to remember that even before the pandemic hit, most of our overseas State Department offices and USCIS offices in the states were pretty much processing at peak capacity.

Consular officer note: Right, and bringing on more staff takes time because of all the security clearances and whatnot that need to happen in that process.

Does documentarily qualified include medical Form I-693 also?

The medicals are typically done roughly at time of interview. If an applicant that is being processed for adjustment of status, had been interviewed earlier and then could not be finalized because of the retrogression of the employment date, the medical that they provided at that time may have expired. That’s why we tried to limit requesting the medicals until very close to the appointment time, because they are somewhat time sensitive. In those cases, the USCIS office may request that the applicant provide an updated medical because they think the movement of the dates is likely to allow that applicant to be processed, in July or August, so they want to have the case ready to go so that they can be processed quickly.

How much will the visa wastage be for EB? Is it tens of thousands, hundreds of thousands?

At this time, I could not even speculate how many numbers will not be used under the various annual limits. The best I can say, is I would expect the amounts to be very large given the constraints that have been imposed on processing in the states and overseas because of the COVID situation. It would be somewhat unrealistic to expect that all the numbers could be used based on the limited processing ability posts and USCIS offices have had because of the COVID-19 issues limiting, you know going into work, having people come in, and actually for example, if an applicant is required to get a medical or an updated medical, all the current COVID-19 issues may be limiting the ability for them to get medicals and that would also prevent the processing of the case.

For downgrading an application in India EB-2 to EB-3, is the applicant counted in both the lanes while pending, since EB-2 is also still valid?

The applicant’s case, if it has been reported to me, is only counted in the original category they filed. So if they originally filed as in India’s second preference but they’re now attempting to have their case downgraded because the EB-3 date is more advantageous, I don’t really know of the that demand until the downgrade has been approved. At that point it would be removed from the India second preference information that I’m seeing about potential applicants, and at that time it would be reported in the India EB-3 potential applicants. Basically, I have limited visibility of the numbers during the downgrade grade process and basically I don’t care about it too much because that downgrade could take you know a month, six months, whatever, so I would not want to tie up, for example, tie up numbers in the third preference on the assumption that I was going to get downgrades and they not materialize and as quickly, and therefore not be able to utilize other numbers by moving the date.

If USCIS does not process EB green cards at the rate to reflect movement of the Final Action Dates, what’s the real significance of your department’s work? It doesn’t seem to have any impact.

The immigration service is very good about providing me at the beginning of each month a report of how much demand that they have that are in various stages of processing, so I can take that information into consideration when I am advancing the various Final Action Dates. That has been a long-standing process. The COVID-19 issues may be preventing some of those applicants from being processed. The demand is still being reported to me and I’m moving the Final Action Dates to reflect the amount of demand in an attempt to fully maximize number use under the limits.

How much movement should we expect in the CR-1 interview letters in embassies in the coming months?

That I couldn’t comment on post-specific issues. Again, monitor the post website: they will provide the most up-to-date information of how they’re processing among the various categories.

Consular officer note: It’s important to monitor the website of the embassy or consulate at which you’re applying for your visa and you can find all of the embassy websites if you go to usembassy.gov again that’s usembassy.gov and just type in the embassy at which you’re applying and you can find the website through that portal.

Is there a way for the applicant to know if they are documentarily eligible?

Yes, at least for if they’re processing the case and overseas posts. Cases that have been initiated in recent years, they can monitor the status of their case on the National Visa Center website. They’re provided with information of that when they’re contacted to just begin submitting documentation and they can monitor where the various documents are in the various stages of processing at our National Visa Center all along. They can see if something is missing or not and the National Visa Center would contact them. If they had been asked to provide a certain document, say a birth or marriage certificate, and they had submitted everything but that, the National Visa Center will be in contact with them to say you know we still need your birth certificate or we need the marriage certificate, and only once that’s received can you be considered to be documentarily qualified and reported to the visa office for potential consideration of a future visa. I can’t comment on the process used by USCIS, I’m really not familiar with that, but again State Department side, we’re trying to do that and it’s kind of a self-serving process because the National Visa Center was having a large volume of calls coming in: can you check on my case, can you tell me where I stand, and having to answer those types of questions prevent them from dedicating staff to other types of processing. Allowing the applicant to go online and check it out themselves is best for both parties and it’s a faster turnaround time, because if say the National Visa Center had to contact me and say, Charlie, you’re missing your birth certificate, well it takes time for that notification to get to me and it takes time for me to get it back if I can just go on and list, oh this is the document I forgot, it’s an expedited process. When the National Visa Center contacts the applicants, they give them a list of what’s required of them to submit and so there should really be no question, did I submit all the documents. If they give you a list and say, you need eight documents, if you send it all eight in, you can assume your case, unless you’re being contacted, that things are okay, that they have all the required information. If you’ve only sent in seven or six of the eight, then your cases can’t go anywhere till you submit the remaining documents.

For concurrent I-485 and I-140 applications, what happens if the I-140 application is still pending, but the priority date becomes current?

That is a USCIS processing issue and I’m I would not feel comfortable commenting on that definitely.

Any age relief for age-out applicants?

The Child Status Protection Act does provide some relief for applicants who turn, for example, turn 21 while their case is still pending. That is a very complicated calculation which I luckily do not have to be concerned with or extremely familiar. I believe that on the travel.state.gov website, there is some information if somebody is interested to determine if they are eligible and how it would apply to their case. So again, the travel.state.gov has a wealth of information to everybody that they can access and hopefully provide answers to most of their questions.

Can we get employment-based I-485 inventory monthly based on country? It’s missing from USCIS and also from the State Department website.

We don’t publish it because it changes on a regular basis. I’m not sure exactly what the USCIS is publishing. I rely on the reports that they submit directly to me based on my specific needs, so I don’t really monitor what they’re posting too closely. That would be again a question best channeled through the USCIS.

If a person has two or three I-140s filed through different employers when they switched jobs, even though the filing date would remain the same, is the case counted as a single case or would it be two or three different cases?

It would probably be reported as one. Again, this is a specific issue for USCIS. Applicants at USCIS are assigned A numbers and whenever the USCIS requests a visa number from our visa office, they do so providing the applicant’s A number, their priority date, their visa category, and their foreign state. We will only act on one number, so if in that example, if they had A number 123, we would only allocate one number, authorize it for use by applicant with an A number 123.

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