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.
Charles Oppenheim predicted that annual limits for FY 2021 are unlikely to be reached given the ongoing effects of the pandemic. However, he also stated that USCIS did a great job processing in the summer of 2020, so he is hopeful progress can be made.
Chats with Charlie Highlights
- Annual limits for FY 2021 are unlikely to be reached this year due to ongoing COVID limitations.
- The family limit in FY 2022 is expected to be 226,000.
- The employment limit is expected to be at least 290,000, which is a new all-time high.
- China and India employment are expected to continue advancing aggressively through the end of the summer and most likely through the early part of FY 2022 as well.
- Charlie expects USCIS to begin accepting adjustment of status filings by Dates for Filing for India in the upcoming months.
- Family-sponsored dates in most preference categories are likely to continue to be held through most of FY 2022.
- The DV rank cutoffs will remain current through the end of the DV 2021 program.
To view the current and upcoming Visa Bulletins, you can visit these links:
Charlie Oppenheim has been with the State Department since 1978 and has been the Chief of the Immigrant Visa and Reporting Division in the Office of Domestic Operations since 1998. The division’s main responsibility is the administration of the annual numerical limits on immigrants, subdivided by preference category and country as provided for 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 FY 2021 family-sponsored and employment-based annual limits will be reached?
No, we do not believe that based on the implications of the COVID-19 situation and other issues which have impacted processing since October, we do not expect that those limits will be reached. The processing of cases at our overseas post has resumed in recent months, but we’re still not at the normal processing levels and my guess is that the USCIS offices are facing the same processing issues.
What do you expect that the FY 2022 family-sponsored and employment-based annual limits will be?
Under the current INA guidelines, we expect that the family-sponsored annual limit will once again be 226,000. it has been that way since about FY 2000 and for the employment based limit I now expect that the limit will be at least 290,000 for FY 2022. That will be another all-time high in terms of the employment limit.
Do you expect that China and the India employment second preference dates will continue to advance?
Yes. We will continue to advance those dates and most other employment dates as well, with a probable exception of the employment fifth preference category for China. All other employment dates will be moved aggressively through the end of the summer and most likely in the early part of FY 2022 as well again based on the expected exceedingly high annual limit for 2022.
Do you expect that the worldwide family preference dates will continue to advance through September as well?
Originally, we had expected the movement of the family dates to have slowed or stopped for the summer months but based on changing conditions at our overseas posts which are allowing additional numbers to be utilized, there is an excellent chance that we will be able to continue advancing many of the family dates through the summer.
Which countries typically use the majority of the employment-based visa numbers?
China and India typically use the vast majority of the employment numbers, the reason being these applicants have the earliest priority dates, and also if there are otherwise numbers available under the annual limits, those otherwise unused numbers can be made available to the applicants with the earliest dates. Again, those being typically China and India, particularly in the Indian employment second and third preference categories.
How are the Final Action Dates determined for each month?
We consider a number of variables when making the determination of the dates based on preference category and annual limits, for example, the overall per-country limits and category limits. We determine how many numbers have already been used, how many initial additional numbers we expect to be used during the current month, and the amount of known demand for which number use might be required based on the movement of the Final Action Dates for the upcoming month, so those are just a few of the variables that are involved. There’s a number of others but those are kind of the highlights.
Does USCIS share information with your office regarding the amount of cases they have in various stages of processing?
Yes, we’re very lucky. The USCIS Ombudsman’s Office hosts a monthly meeting at which State Department, USCIS officers, and sometimes other government agencies are on the on the call or the in-person meeting. In earlier times we discussed the number situations. At the beginning of each month, USCIS provides me with a very detailed report indicating the amount of demand they have, which is in various stages of processing in the various categories we use that information in the determination of the Final Action Dates knowing that such demand could require the use of a number during that upcoming month, for example at the beginning of May, I received the report, I was able to look at that, and based on the information there, determine what the June employment dates should be, based on the likelihood numbers would be used during June.
At what point is a number allocated for use by an applicant based on the determination of the monthly Final Action Dates?
If the applicant has already been reported to our office as being documentarily qualified, meaning they’ve submitted all the required documents that are normally required at the time of visa interview, and their priority date is within the newly announced Final Action Date, the numbers are immediately allocated to for potential final action on their case then throughout that month and the upcoming month, numbers are continually allocated as new cases can be finalized because all of the required processing on them have also been received and finalized. For example I believe one of the questions last month was about the USCIS offices requesting additional information on the case for example a new medical etc. well that new medical is received and then immigration would then once it’s received they could request an additional number for use by that applicant
Do you expect any of the Final Action Dates to be retrogressed?
No, we do not expect any of the family–sponsored or employment–based Final Action Dates to be retrogressed either in FY 2021 or for the foreseeable future in FY 2022.
In terms of FinalAction Dates, as we move forward, we do expect that many of the family-sponsored Final Action Dates will be held for an extended period of time once our overseas posts do return to completely normal operating status, most likely sometime in next year. The reason being that the dates which have already been established will provide sufficient demand to utilize the vast majority of the 2022 numbers, at least in the first half of the year, potentially moving forward into the second half again, so in terms of family movement of dates they are likely to stop once overseas processing resumes full operational status.
Do you expect any of the DV 2021 rank cutoffs to be retrogressed?
No, all of the DV rank cutoffs will remain current through the end of the DV 2021 program.
Do you anticipate EB-2 EB-3 with some September 2011 priority date will retrogress in FY 2022?
We do not believe that will happen again with the anticipated high limit for 2022 I think that everybody can be assumed that all of the employment dates will continue to be advanced at a very aggressive pace at least for the first half of the year then depending on the amount of new filings and processing rates, things may slow down or have to be held at some point during the second half of FY 2022.
How much movement can we see with EB-3 in the July bulletin?
It will be very aggressive. I think it’s safe to say that most if not all of the application filing dates which are listed for employment in the bulletin, with the exception of China EB-5 will be reached by the end of the year, so again expect very aggressive movement of the employment dates for the month of July.
F-4 retrogressed last year in January 2020. Until now it hasn’t come up to the same month, which was February 2021.
No, the family fourth preference has never reached 2021, so I’m not sure the person submitting the question is on the fourth preference, but the date did retrogress in FY 2020. The reason being throughout, FY 2019, the response rate by applicants who had been requested to assemble and submit required documentation was extremely low, so the worldwide family fourth preference date had been advanced at a very rapid pace to try to maximize number use under the family’s sponsored fourth preference, then eventually the response rate did start picking up and therefore we had to retrogress it, because the amount of available numbers was insufficient to meet the new demand and we’ve been slowly recovering from that retrogression during the course of the last year and a half.
When can we expect a 2016 March EB-3 to be current for India?
I think that the India third preference date is likely to advance into 2012 in the near future. Beyond that we will have to continue to watch incoming demand.
Is there any chance of the spillover from family-based for FY 2021 to employment-based in FY 2022? From the last prediction of 135,000, is it still that same prediction?
Yes, my prediction as I mentioned earlier, I expect that the fall across under the INA guidelines of unused family numbers which are automatically added to the employment annual limit for the following year. I believe that will result in the FY 2022 employment-based limit being at least 290,000.
How is your work audited for the way you move Visa Bulletin dates if all the data is carefully headed under a few months later? It took USCIS 113 days to publish quarter one results.
Over the years, there has been internal monitoring of the number used and the dates constantly. Immigration looks at it as well and over the years the OIG has also looked at the methodology etc. in the past and been satisfied with the results of their studies as well. Basically, everything that is done with the movement of the dates is done in an effort to comply with the Immigration and Nationality Act guidelines. They’re pretty cut-and-dried, saying what should be done. For example the preference limits, the per-country limits, how otherwise unused numbers may be allotted, etc. So it’s fairly easy, we just follow those guidelines.
What is the point of advancing Indian EB-2 filing dates as USCIS refused to accept adjustment of status filing for the month of June 2021?
The State Department has no jurisdiction over what they may choose to do but we continue to advance the application filing dates, because that allows our National Visa Center to contact the eligible applicants based on the movement, and ask them to begin assembling and submit the required documentation. That is an excellent way for me to gain much-needed visibility into potential demand when and if I were to move the Final Action DateFinal Action Dates, and the Immigration Service has a formula which they use to decide whether the either only the Final Action DateFinal Action Dates or a combination of the final action and application filing dates will be allowed to be used. I would suggest that listeners carefully monitor the USCIS website which provides that information on whether the application dates will be able to be used for the upcoming months. At this point I fully believe that the dates which are announced in the October Visa Bulletin for Application Filing Dates be allowed to be used for filing. That has been the standard policy in recent years.
Shouldn’t the spillover go specifically to India since it’s the most backlogged?
No. We are currently estimating that there will be approximately 150,000 unused family-sponsored numbers. Those 150,000 numbers get added to the 140,000 minimum employment-based annual limit resulting in the 290 figure, then the Immigration and Nationality Act guidelines which indicate that in the first employment, first second, and third preference categories, those preference categories are entitled to 28.6 percent of the annual limit and the fourth and fifth preference are entitled to 7.1 percent of those annual limits. Then there is also a 7 percent per-country annual limit which is applied to that 290,000 figure and once that per-country limit is established, then once again there’s 28.6 percent and the 7.1 percent limits are imposed to the availability of numbers within an individual country. So again the Immigration and Nationality Act guidelines imposing the seven percent annual limit, the intent is to prevent a handful of countries from potentially monopolizing all of the available numbers giving an equal chance at applicants around the world to have use of the numbers and then if the numbers are not being used in the various employment categories, then they can be those “otherwise unused numbers” under the annual limit can be provided to the countries which have applicants with the earliest priority dates.
Why is the difference between Filing Date and Final Action Date in the India F-4 only six months and when in other categories the difference is between nine to twelve months?
With the Application Filing Dates, they are established at a point where we believe the Final Action Date is likely to reach within the next eight to twelve months. The amount of applicants in the India F-4 preference category which have applied and submitted all the required documentation is sufficient within that roughly six month period to utilize all the numbers we believe will be available in the near future. Once that level of demand starts to be diminished, then the Application Filing Date for India F-4 would be advanced. Those dates are established and advanced depending on the various preference categories.
Does the State Department have authority to make all priority dates current if USCIS does not use the employment-based visas available this year for example the 262,000 for FY 2021?
The way the Final Action DateFinal Action Dates are determined, we have a number use target for a given month. We compare that target with the amount of numbers available and the demand, so we look carefully at the amount of demand which potentially could utilize the available numbers. If there is not sufficient demand that we can see, then a category, for example, in the worldwide employment third preference category that is currently deemed to be current because the level of demand that we have on file at this moment is not sufficient to fully utilize all the available numbers, but if we were able to see the demand was there we might have to establish a Final Action Date.
Why did you move the family first preference Filing Dates aggressively and are you planning to move the priority dates aggressively with the Application Filing Dates?
On the family categories family first preference, once again we wanted to stimulate applicant responses so that we could generate sufficient demand to fully utilize the available numbers. The advancement of the F-1 Final Action Date has also been done in a manner to allow enough applicants to be ready to go, and potentially use all of the available numbers under that limit. The F-1 annual limit is 23,400, so by the end of the year we want to have a date which will generate enough demand to allow all those numbers to be utilized.
Out of 262,000 visas which were available to employment immigrantion, how many visas have already been used, and how many visas can be expected to be used by the end of this fiscal year?
We do not publish mid-year figures or discuss that in terms of number use. I do believe that both on the family and employment side there will be significant amounts of unused numbers under the annual limit. We are hoping that that proves not to be the case through continuing efforts to utilize visa numbers. For example, during the summer months of 2020, last summer, we did not expect the employment annual limit to be reached then, yet the extraordinary efforts of USCIS in terms of being able to process cases during the summer months allowed the vast majority of the employment numbers to be utilized. We continually monitor the situation, and again the aggressive movement of the employment dates have been done in a manner to potentially maximize number use by making numbers available to qualified applicants.
When do you expect F–3 final action for the rest of the world will have a strong forward movement again?
In the F-3 preference category, as I mentioned earlier, the dates have already been advanced at an aggressive pace to maximize potential number use under this year’s annual limits, therefore to the extent we’re not able to utilize those numbers, we will already have them ‘on hand ready to go as we move into FY 2022. That is the reason I believe that at some point the family-sponsored dates in many or most preference categories are likely to be held for an extended period of time, because we will already have enough applicants ‘queued up ready to go’ based on the existing dates and therefore we do not need to continue to advance those dates.
What is the reasoning for progressing the EB-2 India Filing Dates especially since the Filing table cannot be used?
As mentioned earlier, we advanced the Application Filing Dates to allow our National Visa Center to notify applicants who have petitions on file with them for processing abroad to begin assembling the required documents, so that they will have visibility into such demand in the future and that those applicants then are potentially ready to be scheduled based on the movement of the Final Action Date at some future point. Again, this is to gin up in the demand for visibility on our side. The Immigration Service has a different policy for determining when they will allow those application filing dates to be utilized.
When you say aggressive, what does that exactly mean to you? Are you talking 12 months, 15 months, 9 months?
I would say, for example, in the India second preference. For the previous two fiscal years, often the India employment second preference date was often moving by a matter of days, up to a week, maybe two weeks or a month. Our aggressive movement in recent months has been three to five to eight months at a time. so therefore again the aggressive movement is made in an effort to make sufficient numbers available to fully utilize the annual limits. At this point, all of the employment first preference categories are current, meaning there’s sufficient demand for all applicants, additional numbers which will not be required in the first can fall down and be utilized in the employment second preference category, and that is allowing both the China and India dates to be moving at a very rapid pace.
What order are the applications processed in? Is it based on priority date, received date, or notice date?
I cannot speak to the USCIS processing, but at the State Department, it’s based on when the applicants become documentarily qualified, meaning they’ve submitted all the required, requested documents to the National Visa Center, and then have been reported to the Visa Office for consideration. The cases will be processed in the order that they were originally provided to the visa office.
How are cases at KCC prioritized?
The KCC handles all of the documents that are submitted for overseas processing of diversity visa categories. Once again, they would be processing in the order that the cases became documentarily qualified, so it is my understanding that for both the family and employment cases and the diversity cases, a case that was submitted in October would be scheduled for an interview before a case that only was reported became qualified and reported to the Visa Office in March. so again we’re taking the cases in the order the people became ready.
Do you believe that India EB-3 from 2013 will be current in 2022?
I do believe that an India 2013 priority date will be reached in FY 2022. If you look at the application filing dates which are listed in June, and the employment categories with the exception of employment fifth preference China, I believe all of the other application dates will be reached by the Final Action Date by September. One example is for Vietnam employment fifth preference that there is no application filing date. I believe there is an excellent chance the Vietnam employment fifth preference category will become current by September.
In our last monthly chat, you indicated that dates for processing immigrant visas for the F-4 category were going to move. However, those dates didn’t move this month. Do you know why?
The worldwide family fourth preference for the month of June did advance. I don’t have the sheet with the May date, but I believe the worldwide fourth preference date advanced two to three weeks for the month of June.
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