United States: EB-2, EB-3 & EB-5 China Priority Dates And EB-2 India – Visa Office on Priority Dates, Demand, And Predictions

Last Updated: January 12 2015
Article by Alka Bahal

Charles ("Charlie") Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers' Association). 

Below are highlights from the most recent "check-in with Charlie", reflecting his analysis of current trends and future projections for the various immigrant preference categories.

When Might We Expect to Learn More About EB-5 China Movement?

Charlie is confident that a cut-off date will be established for EB-5 China and it is just a matter of when it will occur. He is in constant dialogue with USCIS' EB-5 office and Guangzhou and hopes to have enough information to be able to estimate when the cut-off is most likely to occur by the beginning of February. If so, expect more information in the March Visa Bulletin, which will be published in the second week of February 2015.

EB-2/EB-3 China Priority Dates and EB-3 Downgrades.

The China EB-2 cut-off date moved from January 1, 2010 in the December Visa Bulletin to February 1, 2010 in the January Visa Bulletin. The China EB-3 cut-off date advanced much more dramatically from June 1, 2010 in December to March 1, 2011 in January, but is advancing more slowly than it had in late 2013 and early 2014. The Visa Office expects China EB-3 to continue to advance, until demand begins to increase significantly.

With the EB-3 China cut-off date for January 13 months later than the EB-2 China cut-off date, the Visa Office expects a surge in demand for China EB-3 over the coming months due to EB-2 China beneficiaries filing EB-3 "downgrade" petitions with USCIS. This expected surge in EB-3 demand will ultimately slow advancement, and will most likely result in the retrogression of the China EB-3 cut-off date at some point. Keep in mind that the Visa Office has no visibility to downgrades until such time as USCIS requests a visa number.  These are categories to continue to watch closely.

Will Executive Action Have Any Impact on Priority Dates?

It is not anticipated that the executive action recently announced by the Obama Administration will impact cut-off date movement.  The announcement outlined broad plans for preregistration of adjustment of status applications for individuals whose priority dates are not current.  As this would be limited to USCIS filings and would not render these individuals eligible for an immediate visa number, it would not impact priority dates.  The Visa Office is nevertheless in communication with USCIS regarding the administrative impact of these filings on USCIS workflows and on the system USCIS and DOS have for maintaining the pending demand file.

Executive action promises increased coordination between USCIS and DOS.  Interagency cooperation has been occurring for some time and the Visa Office looks forward to any initiatives which would further enhance information sharing between the agencies.

EB-2 India

The EB-2 India cut-off date has remained steady at February 15, 2005 since November 2014.  Historically, there has been no movement of EB-2 India prior to the summer when information about unused visa numbers from other categories can be more accurately predicted.  The Visa Office is considering whether to begin advancing this category earlier this fiscal year than it has previously done. One of the challenges in doing so is that the resulting increase in number use could ultimately reduce the cut-off date movement that normally occurs during the final quarter of the fiscal year.

Waiting List Report:

The January 2015 Visa Bulletin ( http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-january-2015.html) includes in Section D, an "Annual Report of Immigrant Visa Applicants in the Family-Sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2014."  This report lists the total number of applicants registered at the National Visa Center in the various numerically-limited immigrant visa categories.  AILA received the following question from a member in response to this report:


Is there any way that the Visa Office could show how many of the applicants have priority dates in the next 6 months, next year, and next 18 months? The raw numbers do not give much help in telling a client there are "x" number of applicants ahead of your priority date.

Visa Office response:

We understand the member's desire to know how many applicants have priority dates within the next 6, 12 and 18 months.  The Visa Office does not provide this information primarily because doing so would not be as instructive as one might think in predicting when an individual's priority date will become current.  There are several reasons for this.

It is important to keep in mind that visa demand is constantly changing and the data in such a report would only represent a portion of the possible visa demand.  Specifically, it would not include data on the many cases pending at USCIS. The USCIS numbers represent the vast majority of the demand in the employment-based categories.  Additionally, knowing the number of cases with certain priority dates within a particular IV category could be misleading, since this is only one of several variables which are taken into consideration when determining the monthly cut-off dates.

It is also worth noting that the demand included in such a report would not reflect the number of cases NVC has on file in the family-based categories that could potentially pursue their cases.  For example, at this time, approximately 60% of F-2B applicants never responded to the agent of choice letters sent by the NVC during the period March 2013 through April 2014.  There is no way to know whether these individuals adjusted status through USCIS, whether they did not proceed due to ineligibility, whether they are no longer entitled to status, or whether they are putting off responding for some other reason.

One reason applicants may not respond to an agent of choice letter is that they may not want to pay the fee until their priority date becomes current.  While this is understandable, it can be counterproductive.  When an applicant pays the fee promptly upon receipt of the agent of choice letter, the case is either complete, or there is time to obtain any necessary documents to complete the file so that the case is ready for interview and approval as soon as the priority date becomes current.  When an applicant waits for the priority date to become current before paying the fee, an unanticipated surge in demand could result in the retrogression of the relevant category before the applicant had the opportunity to be interviewed and approved.  Therefore, it is preferable that applicants pay the fee immediately upon receipt of the agent of choice letter and promptly provide any requested documents as soon as possible.  Doing so provides greater visibility of demand, which in turn reduces the potential for erratic movement of the cut-off dates.

Coming Attractions...

Every few months the Visa Office updates its predictions for visa availability in the coming months, as it last did in November.  Expect to see updated predictions in the February 2015 Visa Bulletin.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Alka Bahal
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