DHS

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 the comprehensive notes on the Q & A session.

Family Highlights

• No retrogression expected for the family dates this year.
• There will likely not be much forward movement with the possible exception of the fourth preference category and Philippine family dates.
• Expect the worldwide and India fourth preference dates to advance in June.
• Filing Dates are typically 8-12 months out from where Final Actions are expected to be.
• However, 95% of the family-sponsored numerical limit is processed overseas, which is affected by COVID-19 protocols and conditions.

Employment Highlights

• Expect aggressive movement of the June employment dates, with the exception of EB-5 China.
• No retrogression expected for India EB-2 or EB-3.
• There could be a slow down to the movement in July for EB-3 India.
• The large number of downgrades in October could impact the movement of the India third preference date.
• EB-2 for China is expected to advance rapidly, possibly into the summer of 2017.
• USCIS processed over 95% of the 2020 employment annual limit, despite COVID-19 limitations.
• This year’s limit is 68% higher than last year’s.
• There could be tens of thousands of unused numbers.
• India’s EB-2 number use already exceeds the per-country limit due to spillover from other categories.
• Expect at least 10,000 numbers that would fall to the first preference category.
• Since EB-1 is current for all countries, those numbers could then fall down to EB-2, leading to more aggressive movement on the China and India second preference dates.

Diversity Visa Highlights

• All countries will be current for DV processing in July.
• Egypt, Nepal, and Iran will be current effective for the month of July.
• Regional DV ranked cutoffs will be current based on the amount of documentarily-qualified demand.

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

• April 2021 Visa Bulletin
• May 2021 Visa Bulletin

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.

Q: You have previously mentioned that the FY 2021 employment annual limit is approximately 262,000. Do you expect that all of the numbers will be used?

A:  I’d like to start off by mentioning the fact that the USCIS offices processed over 95% of the 2020 employment annual limit under extremely difficult conditions because of the COVID-19 issues, which shows that they are dedicated to maximizing number use This year’s annual limit is approximately 68% higher than last year’s. Most overseas and domestic operations were already working at peak capacity and the COVID-related issues remain. That’s very important to everyone to remember. Therefore we believe it would be somewhat unrealistic not to expect that there could be tens of thousands of unused numbers despite everyone’s best efforts this year.

Q: When do you expect that the DV ranked cutoff for Egypt might become current?

A: For the month of June, all of the regional DV ranked cutoffs have become current, based on the amount of documentarily qualified demand, which has already been reported to my office through the Kentucky Consular Center. I expect that such status will remain throughout the year and that all countries will be current for DV processing, effective for July. Again, people must be documentarily qualified and reported to my office.

Q: If it were assumed that there will be otherwise unused numbers which can be made available for use in the employment second preference category, why isn’t the India EB-2 date moving at a faster pace?

 A: Although we do expect additional otherwise unused numbers under the annual limit to become available, I must not be too aggressive at this point in terms of providing numbers to the Indian employment second preference category while there is a potential need for those numbers by rest of world applicants. I will continue to move the India EB-2 date aggressively for June and July, but again I want to make sure that we do have plenty of numbers for all other countries under their per-country limits.

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

A: With the possible exception of the family fourth preference and the Philippine family dates, I do not expect any forward movement, and any that occurs through August would be minimal. Based on information that I’ve recently received, we do expect to advance the worldwide and India fourth preference dates to move for the month of June.

Q: Why does USCIS only allow the dates that are listed in the application Filing Dates chart to be used for such a short time each year?

A: This is a question best posed to USCIS, but from my discussions with them, when USCIS is making a determination on whether to allow those dates to be used for filing, they take into consideration issues such as the annual limits, the amount of numbers that have already been used, the amount of cases that have been filed and that are pending action, therefore if they believe that the resulting totals are sufficient to use all available numbers under the annual limits, they may decide that chart B,application filing dates, may no longer be used for filings. I would suggest that everyone monitor the USCIS website very carefully in the coming months to see if the application date use has any type of change. In the Visa Bulletin, we do have the information with a direct link to that site. The Visa Bulletin can be found on Travel.State.Gov

Q: Will Indians get a majority of the employment visa numbers?

A: The INA Immigration and National Act imposes a 7% per-country limit, to avoid any single country from being able to monopolize the vast majority of in the various preference categories, but it is important to remember that for the employment visa categories, §202(a)5 of the INA states that if the total demand of numbers is insufficient to be used in a particular employment category, then those numbers can be made available strictly in priority date order without regard to any normal annual limits. Therefore at this time, for example, in the employment- second preference number, India number use does exceed their per-country limit and will continue to for the year.

Q: If I have submitted all of the required documentation, why hasn’t my case been scheduled for an interview?

A: As I mentioned earlier, as with the case with the operations at USCIS offices in the U.S., the COVID-19-related issues have severely affected our ability at the overseas posts to process cases as they normally would. Therefore the scheduling of cases is largely dependent upon the conditions of each particular post and safety is a primary concern. Individuals should check the travel.state.gov website that has links to all of the U.S. embassies and consulates websites, where you may be able to find information on the particular post that is handling your case and its operational status.

Q: Do you expect that the September Final Action Dates will have surpassed the Application Filing Dates that were listed in the October Visa Bulletin?

 A: With the exception of the China employment fifth Application Filing Date and the India employment third preference date, which was subsequently retrogressed, the answer is yes. By September they will have been exceeded. Many have already been surpassed by the May Final Action Dates dates. It is important to note that the Application Filing Dates which were listed in the October 2020 Visa Bulletin are those where it was expected that the Final Action Dates would be in September. Some of those dates have advanced throughout the year and will advance as we move forward through the summer.

Q:  What are the chances that the June 2017 priority date would move in this fiscal year? Are the dates going to move?

A: With the exception of the family fourth preference category on a worldwide basis and India, there will be only limited movement of the Final Action Dates, except for Philippine family dates, which are expected to move forward. With the exception of the family fourth preference category, the amount of documentarily qualified, which we already have within the established May dates exceeds all of the family preference annual limits and that’s why future movements are likely to be limited. On the employment side, there will be very aggressive movement of the June employment dates, with the exception of China employment fifth preference, although China employment fifth preference can be expected to advance for the month of June.

Q: What are the chances of Final Action Dates reaching what is in the Filing Dates chart by the end of September?

A: If you look back at the application filing dates that were listed in the October 2020 Visa Bulletin, those application dates should be reached by September. Most of them have already been reached or far exceeded. The dates that are listed as application filing dates, any that have changed since October are those that I feel that the Final Action Dates will be in 8-12 months from the time the change was made. If I made a change in the May bulletin, we can expect that application Filing Date to have been reached by Final Action Date 8-12 months in the future.

Q: Do you expect any of the employment-based Final Action Dates for India to retrogress for EB-2/EB-3?

 A: No, the answer is a definite no. The Final Action Dates that are in place at this time will be the minimum going through the month of September. Again, I do believe that all of the dates in the employment categories will continue to move forward through the remainder of the year.

Q: When will Nepal be current?

A: Nepal’s diversity visa rank cutoff category for the month of July, will be current. Currently, all of the DV regional rank cutoffs were current for the month of June. We will be making the remaining the remaining rank cutoffs for Egypt, Nepal, and Iran; applicants will also be current effective for the month of July. This is being done in an effort to be able to maximize diversity visa number use by those applicants who have acted in a very timely manner, submitted all of the required documentation to the Kentucky Consular Center.

Q: Do you expect people born in Hong Kong to be put in the same backlog in the future as mainland  Chinese under Trump’s executive order last July?

 A: I can’t comment on that specific issue, but at this time, for the family and employment-based categories, Hong Kong remains treated as an independent country, as they have been. For the diversity visa program, please refer to the announcement for the DV 2022 registration period for specific information on how the foreign state status for Hong Kong would be applied for that program. For family-sponsored in the numerically-controlled categories and employment-based applicants, Hong Kong remains as it has been for the past several decades.

Q: How many visas will spill over from EB-4/EB-5 to EB-1/EB-2?

A: It is likely that the employment fourth preference limit will have an excellent chance of being reached this year. Any unused numbers would fall up to the employment first, as would any employment fifth preference numbers. I do at this point think that the combination of the two, expect there will be at least 10,000 numbers that would fall up to the employment first preference category.   The employment first preference category is current for all countries now, meaning there are enough numbers for everybody., so if we do not have sufficient demand to use the first preference limit, those unused first preference numbers will then fall down to employment second preference and can be used in that category. That has already started to happen and is part of the reason we have started to make aggressive movement on the China and India second preference dates.

Q: How do you determine how much the dates move for China versus India in EB-2 and EB-3?

A: As I mentioned section §202(a)5 indicates if there will be otherwise unused numbers under the annual limit, those numbers are made available strictly in priority date order. Right now the employment second preference Final Action Date for the month of May for applicants from China is December 1, 2016. The India second preference Final Action Date is August 1, 2010. Therefore, it is safe to say that any unused employment second preference numbers that are otherwise unused will go to the India second preference category.

Q: When do you think family preference priority dates come close to their filing dates?

A: Filing dates are typically 8-12 months out from where I believe the Final Action Dates will be. Because of COVID-19 issues impacting processing overseas, the family dates are not moving as fast as one might normally expect so it may take longer for some of the established family application dates to be reached. It’s important to remember that approximately 95% of the family-sponsored numerical limit is processed overseas, and approximately 85-95% of the employment-based numbers are used for adjustment of status cases by applicants who are already here in the United States You can gauge how things are happening around the world and gauge how processing is affected.

Q: So many people have been downgraded from EB-2 to EB-3 for India. Will the dates still move till January 2014?

A: That is a very good question. The amount of downgrades for second preference applicants who have essentially changed their minds and refiled under the third, to take advantage of the third preference date, will potentially impact the movement of the India employment third preference date. At this time, it is too early to tell. When we did retrogress the India third preference Application Filing Date, that was done in consultation with the USCIS headquarters and the establishment of that 2014 India date was the projected goal for September. Every effort will be made to get it to that point, and the goal is to maximize number use under the annual limits.

Q: Conservatively, how far do you believe EB-2 for China will advance in FY2021? Will you advance EB-2 China priority dates rapidly in the next couple of months.

 A: Yes, the China employment second preference date will be advanced rapidly in the coming months. It will get easily into calendar year 2017. At this moment, if I had to make a guess I would say that it will get to at least the summer of 2017.

Q: What purpose was served by making visa numbers available for over 100,000 DV 2021 selectees, when until now consulates have only issued 20 diversity visas?

A: When we have the registration period for each year’s diversity visa program, we always select enough applicants to help ensure that we can maximize number use under the annual limits. It is important to note that a lot of the people who apply for the diversity visa program, they do not follow through with the registration, even if they are selected, for whatever reason. Sometimes applicants will be refused upon their interview or may not proceed. When we had the DV 2021 registration period and made the selection of applicants, the registration period was pre-pandemic, and the selection was made last spring, but we have to proceed under the assumption that normal processing could return at some point. That allows us to potentially maximize number use under the various annual limits. If we had not registered applicants and miraculously this COVID had suddenly gone away, then we would have been in a situation where we did not have applicants for the numbers that could have been used. It is also important to remember that all of the diversity information on the registration clearly indicates that selection to participate in the program does not guarantee visa availability.

Q: The dates for EB-3 India category have been moved by five months for the May Visa Bulletin. Do you expect similar movement for the June and July bulletins?

A: Yes, I do expect that India third preference Final Action Date will once again be moved aggressively for the month of June. I think all of the June dates will be moved very aggressively, at least at the rate that we moved them for the month of May, potentially at a greater rate. Then it is possible that in July, we may slow down the movement to some extent. At this point, I think that is unlikely though.

Q: How many visa numbers have been used up until now for the EB-2 category for the FY 2021?

A: We do not provide specific number use during the course of the year. I can tell you that every effort is being made to maximize number use in all of the visa categories. USCIS offices are doing a phenomenal job of processing cases they have available to them.

Q: When will I-765V and U visa application dates move? What is the timeline for the U visa movement?

A: The U visa is not covered by the Visa Bulletin.

Q: What do you mean by the ‘documentarily qualified’ with respect to employment-based I-485 applications? At what stage of I-485 application processing, would it become documentarily eligible?

A: For a case to be ‘documentarily qualified,’ all of the required documents must have been submitted and reviewed and been determined that they meet the required criteria: any security type of background checks, medicals, everything required for the processing of the case has to be ready for the person to be considered documentarily qualified. The medical is often the last item. It is not in the documentarily-qualified package, but it is assumed that if somebody submits all of the other required documentation, that they will proceed with the medical and have that at the time of their final interview. Only the amount of applicants that have been reported to our office as being documentarily qualified at the time of the upcoming month’s determination of the Final Action Dates and rank cut offs for DV, those are the only applicants considered for processing for that month.

Q: You previously mentioned that case processing will skyrocket, however, online stats are showing that the number of EB green card processing is still very slow. Do you know why? Are you still optimistic?

A: I am still optimistic that USCIS will maximize number use to the extent of their processing capacity. It is important to remember that there was an extremely large amount of filings in the month of October. Those filings and all subsequent filings must work their way through the process before they reach the final interview status, which would result in the use of a number.  Every effort is being made under the difficult conditions and staffing restraints to maximize number use. Given the fact that the 2021 employment limit is approximately 68% higher than usual, it is unrealistic to expect all of these numbers to be used.

Q: Why have we not received the May interview dates? When will May interviews begin and when will consular posts be at full capacity?

A: Most of the overseas appointments are scheduled for the family and employment categories are scheduled by the National Visa Centers. They must work through the cases once we have made the determination of the May dates and provided that to our National Visa Center. Only then can they begin to review the cases to determine which are eligible for scheduling the visa interview and then they must also work with the various posts to see what their processing capacity may be. That scheduling on the National Visa Center’s part has become much more difficult during this COVID-19 times when there is limited post processing capacity. On the travel.state.gov website, there is information on the types of visas that are being processed based on post capacities.

Q: Why is it so hard to release the bulletin the same day every month?

 A: Our attempt is to make the determination of each upcoming month’s Final Action Dates in the bulletin, on or about the 8^th of the month, depending on how that date might fall in relation to a holiday or weekend. Once we have made the determination of the dates and prepared the Visa Bulletin, and another item, which is a cable to our overseas posts announcing not only the Final Action Dates but also other visa-related information. That information has to be cleared by a number of individuals which have extremely busy schedules with other items depending on the workload, it can take some time for the entire clearance process to be completed. Every attempt is always made to get the clearance out as fast as possible and the Visa Bulletin posted quickly. In recent months, the bulletin has been coming out earlier than it had been.

Q: What happens to last year’s FB 122,000 visas that are unused in the EB category due to processing delays?

A: The FY 2020 122,000 approximately unused family numbers were added to this year’s employment limit, resulting in an approximately 262,000 annual limit. If for some reason, all 262,00numbers are not used this year, then those numbers would fall back across for potential use during the determination of the FY2022 family-sponsored annual limit. Based on past experience, we do not believe that the unused fiscal 2021 employment numbers will make any difference in the annual limit for family going into 2022 and that the normal 226,000 would be applied.

Q: Do you expect any retrogression in the DV Visa Bulletin, if the documents processed by Kentucky Consular Center progress enough?

 A: We do not believe that will be the case at this time , based on the applicant response rate to date, which has been very low in most cases compared to previous years.  There is always a chance for a corrective action of some type, retrogression of a date or making a category unavailable if subsequent events make that necessary. At this point, we do not have any reason to believe there will be a need to reimpose any kind of rank cutoffs for the DV 2021 program.

Q: With interviews of family-based not happening at the posts, would family-based F3 retrogress?

A: No, none of the family dates will retrogress this fiscal year.

Q: Do we have any guidance from USCIS on how fast they are processing EB green cards given that there is a surplus of them in this fiscal year?

 A: The information that I have from USCIS offices is that they are aggressively processing all available cases. In terms of their processing issues, you can find that information on USCIS websites. They list information on processing times, etc.

Connecting with Challa Law Group

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on Facebook, Twitter, Instagram, YouTube, or LinkedIn. You can also join our Telegram community.