Charles Oppenheim is the Chief of the Immigrant Visa Control and Reporting Division, the Department of State division responsible for assembling and publishing the Visa Bulletin, as well as other visa-related information. He recently began sharing his monthly updates on the travel.gov YouTube Channel. Questions for Charles Oppenheim can be emailed to VisaBulletin@state.gov ahead of the event with “Chat with Charlie Question” in the subject line. This event is intended to address issues of general interest related to the content of the Visa Bulletin.

If you have any questions about this month’s visa bulletin, or about any other immigration-related questions, you can submit them to Attorney Lakshmi Challa’s weekly Wednesday Webinar, and she will answer them during a live Q&A session or email us at info@challalaw.com.

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 and should not be interpreted as verbatim quotes.

Q: Do you have any general comments on the bulletin?

• A: Remember that the Visa Bulletin is always published based on contemporary information and sometimes it must be adjusted as new information is reported.

Q: What factors are involved in determining the Final Action Dates? How does processing capacity influence the advancement of the dates?

• A: I look at the annual limit as a household budget. You get your salary and have to divide up income accordingly. I look at the annual limits for each individual preference category, as well as foreign states, and budget an appropriate number of visas each month. How many remain? What is the annual limit? How many have been used? How many may be needed for emergency cases? What are the future expectations for our needs? How many unused numbers may come back from overseas posts? It’s confusing, it’s a lot of numbers, and there are a lot of other variables at play.

Q: By law, any unused family-sponsored preference numbers from the previous fiscal year are added to the next year’s employment-based annual limit, and vice versa. For the fiscal year 2021, the family-based limit is 226,000, and the employment limit is a record-high 262,000. With the COVID-19 crisis still impacting the processing of numerically controlled immigrant visas, do you have any idea what the 2022 annual limits might be?

• A: Yes, COVID issues are impacting numbers particularly in our overseas posts. I am not anticipating a lot of family-based numbers to be used this year. I believe that the limits for 2022, based on current INA guidelines, I expect the family annual limit to be at least 226,000, and the employment limit to be at least 275,000. These projections will be updated as the year goes on, because any unused family numbers will of course be added to the employment-based side.

Q: Movement of the dates in the family-sponsored preference categories has been modest, with the exception of F2A, which has remained current. What do you expect will happen with these categories in the coming months?

• A: Common question. When the dates are moved during fiscal year 2020, enough pending demand was built up to utilize all available numbers for the first quarter of FY 2021. Moving into the second quarter, additional demand needed to be generated, which is why we have seen limited movement in the family sponsored categories. Based on April date movement it is likely that there will be enough numbers for the remainder of the year.

Q: Why have the final action dates for the family fourth preference category moved so slowly in the past two years?

• A: Several years ago, we had little demand for the family fourth preference category. Letters are sent out based on filing dates and once applicants are documentarily qualified, those numbers are reported to me for the updating of the dates. Unfortunately. the National Visa Center was not seeing timely responses, so the date had to be advanced very rapidly in order to maximize the number use under the limit. Suddenly, about 15 months ago, the fourth preference applicants suddenly began to respond in a more timely manner, which has resulted in a slowdown in the advancement of this category.

Q: Although the family-sponsored family limit is 226,000, often actual number use is much less. Why are not all numbers being used each year?

• A: Sometimes demand is insufficient to use all numbers (such as family 2A category). Because we haven’t processed many cases since March of last year, demand has not been reached. The primary reason the limits in family 2A have not been reached is because of lack of demand. Important to remember that these numbers are based on speculation regarding many different variables, including return rates, monthly usage estimates, etc.

Q: What is the difference between the dates listed in the final action date chart, and those listed in the app filing date chart?

• A: The Final Action Dates represent those dates that will govern the processing of the final interviews during that month. The filing date chart is based on when the National Visa Center will contact applicants to instruct them to begin gathering documents. Those dates are where Final Action Dates will be in 8-12 months. Establishing them allows for demand reporting to proceed and get less volatile movement for Final Action Dates. On the employment side, which are mostly AOS dates, I coordinate with immigration services based on information provided based on the number of pending petitions and what they have seen.

Q: Do you have any projections for the movement of the diversity visa cutoff dates in the coming months?

• A: They will continue to advance and I expect all regional dates to be current no later than June

Q: What has number use in the employment-based categories been like in the recent months? Have they increased? What are your expectations for the coming months?

• A: There are a lot of new petitions and new filings from October and November. There has been a large increase in number usage in recent weeks. I expect number use totals to skyrocket compared to the first quarter usage.

Q: For, China and India, the employment first preference category became current in April. Do you expect that to change in the coming months?

• A: No, I believe this will remain current throughout the remainder of the year, barring any extraordinary spikes in demand. Unused first preference numbers will be reallocated to the second preference category.

Q: Has USCIS shared the number of India employment second and third preference applicants that are pending? How much do you expect those Final Action Dates to advance in the coming fiscal year?

• A: There are monthly meetings where information is shared. I think the minimum movement will be in chart B by the end of the fiscal year. I think dates will start accelerating as they have in the past few months.

Q: The employment fourth preference category Final Action Dates for El Salvador, Guatemala, and Mexico have been advancing steadily since late summer. Do you expect this trend to continue?

• A: I expect this to continue. There is not as much demand as expected, so these dates are being continually advanced to maximize number use and get as close to limits as possible.

Q: The Final Action Date for the China employment fifth preference category has not changed since October, and the Vietnam preference date has remained slow but steady. Do you see any change in this pattern? How many documentarily qualified applicants are there for China and Vietnam?

• A: I do not expect the fifth preference date for these countries to advance, likely for the entire fiscal year. Ballpark, we have over 9,000 China employment fifth preference applicants who are ready to go, but we are not able to act on them at this point. With Vietnam that date will continue to advance at a steady pace and there are hundreds of applicants ready to go.

Q: Given the windfall for employment-based visa numbers this year, what efforts are being employed to utilize these numbers?

• A: Employment Final Action Dates are advancing rapidly, China and India have become current, so that numbers can fall to second preference as early as possible for the expedition of the second preference numbers. I expect to do that in the coming months. I can’t comment on what may be possible in terms of processing in the coming year, but USCIS is doing a great job processing the cases they have now. The rapid movement of the dates could require corrective action later in the year if demand starts to spike in certain categories.

Q: How many employment visas might be unutilized for FY2021 based on COVID-based delays?

• A: It is not possible to comment on that at this time, but I will say last year, when similar constraints were underway, over 95% of the numbers available were used. Hopefully this pattern will repeat this year and number use will be maximized.

Q: What kind of movement can viewers expect with upcoming visa bulletins in employment categories for EB-2 and EB-3

• A: For China and India I would expect aggressive movement as much as or more than March and April.

Q: Could visa spillover or waste in family-based categories be reduced for those in the country with granted LPR status?

• A: Not really, we already use 85-90% of employment numbers, and overseas, 95-96% of numbers are used.

Q: Why can’t the fiscal year for the diversity visa be frozen?

• A: In terms of the INA, there are certain rules about how certain numbers are used and the limits are based on fiscal year. COVID has impacted processing in FY2020 and has so far this year. It’s a totally unprecedented issue that was not foreseen when the INA was written, which makes this a learn-as-we-go situation. Immigrant visas are normally issuing with a 6-month validity. A visa in October has a 6-month validity, that could potentially be renewed if there are restrictions preventing travel. More info at travel.state.gov. As backlogs are worked through, 2021 applicants should wait to be contacted by their consulate

Q: Any guidance on the advancement of family-based F3s for the year?

• A: Although there may be some minimal movement, movement of most of the family-based categories for the rest of the year will probably hold for the rest of the summer

Q: How many employment-based numbers do you expect will be available next year?

• A: Probably at least 275,000 based on current INA guidelines. That total is subject to expansion based on the usage of family numbers.

Q: Tell us about the department’s relationship with USCIS – general comments.

• A: It’s a good relationship. We have a monthly meeting where lots of important people discuss visa availability, what is to come, and there are general meetings with USCIS offices to coordinate in order to maximize number use. Information is generally easy to acquire and communication is good and goes both ways.

Q: If the consulate in Guangzhou is still closed, is there any possibility for Filing Dates for Chinese employment fifth preference to move forward for applicants in the US?

• A: No, there is no basis to move a date just for the date of movement. This consulate processes most Chinese employment-based visas, so while the consulate remains closed, there is no reason to advance the date.

Q: If it were decided to reuse roughly 200,000 unused visas from the past few decades, how long would it take to use these visas?

• A: That would require legislative action. The last time this happened was in 2005. All of our overseas posts are already working at capacity. Providing 200,000 extra numbers to the limit does not mean they’re going to be used in a given year unless they were accompanied by staffing increases.

Q: Why is EB-2 in India moving slower than EB-3?

• A: There are fewer applicants in the third preference category who are ready to be processed immediately so that date is being moved more quickly to increase demand and to process more people who are ready to be fully adjudicated. This is also happening in China. There was a dramatic movement in India second preference for April and I think this will happen again in May.

Q: What is the reason for the fast pace of the EB-4 movement over the past year? Is a similar movement expected for this year?

• A: EB-4 is moving quickly for El Salvador, Guatemala, and Honduras because for those categories the number use has already reached a per-country limit. Movement for those dates is based on otherwise unused numbers for other countries where we can see the worldwide demand will not be met, so we reallocated those numbers to those countries, which is why the date moves quickly.

Q: I heard that 275,000 EB visas in FY2021 are being allocated. How is that number allocated. I’d like a clearer picture of unused family visas.

• A: Last year there were approximately 122,000 unused family numbers. Employment for a given year is a minimum of 145,000. I added 122,000 to 145,000 to get the 262,000 limit for this year. I believe there will be at least that many unused numbers this year, maybe more, which is why I am estimating a 275,000 limit for next year.

Q: What does it mean to be pre-adjudicated with respect to pending EB cases? How many such cases exist? Why can’t they be immediately approved?

• A: Applicants for AOS can file with USCIS. Based on what USCIS publishes, they can use published Filing Dates to begin their petition. They can be pre-adjudicated based on that, but they have to wait until Final Action Dates have advanced beyond the priority date for their cases to be finalized.

Q: Is there an update on f4 family priority dates?

• A: Family Final Action Dates are moving slowly, they may move slowly for May, but are likely to hold for a number of months. They are being moved in an effort to have enough demand to meet the limits of post-reopening case processing.

Q: Can you share approximate EB2/EB3 horizontal and vertical spillover for FY2021?

• A: What happens is there is an annual limit. Say the employment second preference category limit is 70,000. The Chinese and Indian limits might be (for example) 5,000. Once those countries are subtracted from the 70,000 limit there would be 60,000 remaining. We must estimate how many of those will be used. If we estimate that 40,000 of those numbers will be used, we can reallocate them in strict priority date order to China and India. Those 20,000 extra numbers would go to the 20,000 earliest applicants. Likely in this hypothetical circumstance, it would be mostly Indian applicants who would get to use those numbers first. It would be on a priority date order without regard to the foreign state.

Attorney Challa discussed the Visa Bulletin predictions, along with other factors for processing speeds in a recent webinar: Pursuing Permanent Residence? Strategies for Pending and Future Applicants.  Subscribe to our YouTube channel to be notified of the latest updates!

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