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On June 19, 2012, Charles Oppenheim, Chief of the Immigrant Visa
Control and Reporting division (Visa Office) at the U.S. Department
of State (DOS), met with the American Immigration Lawyers
Association (AILA) to discuss the recent EB-2 (Employment-Based,
second preference) worldwide retrogression and provide an updated
forecast of employment-based visa date movements for FY 2012 and
beyond.
These comments and predictions are summarized below.
When FY 2013 begins on October 1, 2012 and new immigration visa
quota numbers again become available, the EB-2 cut-off dates for
China-Mainland born and India, which are currently
"unavailable," will move to August or September 2007 (the
China cut-off may be slightly better). It is unlikely that the
cut-off dates will advance at all for the first two quarters of FY
2013 unless the DOS' Visa Office is convinced that there is
insufficient visa demand for the rest of the year. The Visa Office
has already pre-adjudicated 17,000 EB-2 cases for natives of India,
China, and worldwide with priority dates after January 1, 2009.
Further, there will be several cases queued up for adjudication in
October 2012, and it will take some time for them to be
processed.
EB-2 worldwide cut-off dates, which retrogressed to January 1,
2009 under the July Visa Bulletin, will be current in October
2012. However, should several pending cases be approved by the U.S.
Citizenship and Immigration Services (USCIS), the worldwide EB-2
category may retrogress or even become unavailable for the rest of
the year.
As for the reasons behind the rapid advancement and subsequent
drastic retrogression of the priority dates, USCIS apparently
reported that, while it had adjudicated and approved several
petitions, the agency was not receiving a sufficient number of
I-485 applications. USCIS wanted the cut-off dates to be moved
forward even more in March 2012. Nevertheless, the DOS resisted
since there already appeared to be heavy demand (in February, the
demand had already increased by 50%). In addition, while USCIS
stated that it believed that adjudication of EB-1
(Employment-Based, first preference) cases would be at the same
rate as last fiscal year, this was not the case. Oppenheim
suggested that this may have been due to the fact that many
employment-based cases had prolonged adjudication times with USCIS.
In addition, EB-5 (Employment-Based, fifth preference) usage has
been higher this year. Unused EB-5 cases fall into EB-1, and unused
EB-1 cases fall into EB-2.
The Visa Office confirmed that applicants from China and India
who filed will be waiting years for adjudication of their I-485
applications.
While USCIS advised that I-485 applications would be
adjudicated within a 4-6 month timeline, the agency in fact
processed numerous cases in 3 months, the effect of which was to
also increase the demand for visa numbers this fiscal year.
The group of cases that was filed in July and August of 2007,
when all employment-based categories were made "current,"
were all completed by November 2011. At that point, the Visa Office
had to depend on USCIS estimates for adjudication of cases. The
Visa Office had no pre-adjudicated cases that provided a point of
reference to determine what was left or pending.
Future Forecasts
According to the Visa Office, the ability to predict demand is
impeded by the fact that there are no statistics on EB-3
(Employment-Based, third preference)to EB-2 "upgrades."
If a foreign national is upgrading from EB-3 to EB-2, both cases
for that individual remain open (so it appears that two numbers are
being used). It is only upon the approval of the green card that
the duplicate file number ceases to exist and the Visa Office is
advised by USCIS to cancel a pending EB-3 case. Purportedly, there
are 10,000 to 15,000 numbers used for upgrades every fiscal year
according to the Visa Office, although USCIS previously insisted
that the number of upgrade cases was insignificant.
As indicated by Oppenheim, the Visa Office tries to use 13,500
visas per quarter for all employment-based cases and already has
more than 17,000 in line for FY 2013.
Impact on Employers
For companies, the unavailability of sufficient numbers of
permanent resident visas may mean a much longer processing
timeframe for employment-based cases. Employers should regularly
review each foreign national employee's current nonimmigrant
status and work authorization for long-term planning.
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On March 8, United States Citizenship and Immigration Services (USCIS) issued a revised Form I-9, Employment Eligibility Verification, bearing an edition date of March 8, 2013, for immediate use by employers.
EB-2 category for all chargeable areas other than China and India remains current, with some considerable forward movement but continued backlog in the EB-3 category.
A bipartisan group of eight U.S. senators has introduced the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, an 844-page bill that aims to bolster border security and seeks to provide some of the nation's 11 million undocumented people with a path to citizenship.
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