United States: Immigrant Visa Processing Changes – EB2 & EB3 India And China Move Forward – Visa Office On Priority Dates, Demand, And Predictions

In our continuing series of reports, Charles ("Charlie") Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent 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" (March 10, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the final action date movements in the April 2016 Visa Bulletin and provides his projections for monthly final action date movement through the first calendar quarter of 2016.

Final Action Date Movements Consistent with Prior Predictions. The Final Action Dates in the April 2016 Visa Bulletin are consistent with Charlie's predictions last month (see below). In February, Charlie predicted that we would continue to see forward movement of up to five months in EB-2 and EB-3 China, and in April, EB-2 China will advance one month and EB-3 China will advance one and a half months. This modest advancement is attributable to an increase in I-485 cases in these categories coming to completion.

Charlie indicates that he has limited to no visibility into immigrant visa demand at USCIS until USCIS completes adjudication of an I-485 and requests a visa number. The difference in USCIS processing times at various offices makes it difficult to predict future demand and thus, difficult to adjust the Final Action Dates in such a way as to avoid volatility over the course of the fiscal year. For example, when the February Final Action Dates were announced in early January, USCIS reported 400 India EB-2 applicants who were eligible for final action, but by the end of February, USCIS had requested an additional 300 of these numbers. When an abrupt increase in demand such as this occurs, it is impossible to know whether it represents a sustained increase in demand in that category, whether it is the result of preference category upgrades or downgrades, or whether it merely represents a one-time reallocation of adjudication resources. Additional transparency and data analytics into pending I-485s would be helpful, and it is hoped that USCIS' use of the Dates for Filing will eventually provide such insight.

Although it is imperfect, Charlie must make assumptions regarding upcoming demand based on the available data and his prior experience in an effort to stabilize Final Action Date movements. Charlie prefers to advance the Final Action Dates conservatively in the hope of avoiding a retrogression later in the fiscal year, especially in categories that are subject to upgrades and downgrades. Unfortunately the need to generate sufficient demand to use all numbers available under the annual limits often requires aggressive forward movement of the dates. This is the case with the EB-3 Worldwide cut-off date which has advanced 16 months in the past year, and is only one month behind today's calendar date.

Forward movement in the EB-3 China Final Action Date has been slow due to concerns that EB-3 downgrade cases (from EB-2 China) may soon come to completion and result in a spike in demand in that category.

April movement in the Indian employment-based categories is also consistent with Charlie's predictions last month. The EB-2 India Final Action Date will advance less than one month in April, moving to November 8, 2008. Forward movement in this category could be slower than originally expected due to increasing demand in this category which can be attributed to upgrades from EB-3 India. Additionally, EB-1 Worldwide usage continues at a steady pace, making it unclear how many numbers might be available to fall down for potential use in EB-2 India. This should become clearer in the coming months as additional demand data becomes available. The EB-3 India Final Action Date will also advance only three weeks to August 8, 2004.

Announcing the NVC EB-5 Investor Assistance Desk. The April Visa Bulletin also included an announcement regarding the new National Visa Center (NVC) EB-5 Investor Assistance Desk. The NVC has created a dedicated email address (NVCeb5@state.gov) to address EB-5 inquiries. This email box will be staffed with officers who are knowledgeable in EB-5 matters in an effort to improve customer service.

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As we did not post Charlie's predictions from last month, here are his February 2016 predictions:

EB-2 and EB-3 China. Final action dates for EB-2 and EB-3 China will continue to advance in March. EB-2 China will advance five months from March 1, 2012 to August 1, 2012. Charlie believes that there is potential for EB-2 China to continue to advance monthly at this same rate. EB-3 China will advance more dramatically in March, from October 1, 2012 to June 1, 2013, and Charlie believes that this category has the potential to continue to advance five months each month. However, it is extremely important to remember that changes in USCIS demand patterns could drastically alter cut-off date movement and require corrective action at some point.

Charlie is watching these two categories and the interplay between them closely. In the February Bulletin, the EB-3 China final action date was seven months ahead of EB-2 China. In March, the final action date for EB-3 China will be ten months ahead of the EB-2 China final action date. Over the past two years, when the final action date for EB-3 China advanced beyond EB-2 China, EB-2 applicants responded by filing new I-140s to downgrade to EB-3, thus shifting the demand from EB-2 to EB-3. The surge in EB-3 demand slowed the advancement of the cut-off date and ultimately led to retrogression of that category. Although Charlie expects a similar pattern this year, significant EB-3 China demand has not yet materialized.

Note that while the filing dates for EB-2 and EB-3 India have not changed since last month (they remain at July 1, 2009 and July 1, 2005 respectively), the filing date for EB-2 China will advance five months (from January 1, 2013 to June 1, 2013) and the filing date for EB-3 China will advance 19 months (from October 1, 2013 to May 1, 2015). Charlie indicated that EB-3 China usage is split evenly between consular filings and adjustment of status filings at USCIS. If USCIS were to permit adjustment of status filings for EB-3 and EB-2 China, it may help generate sufficient demand to balance out the final action dates in both of these categories.

EB-2 India. A fair amount of demand is starting to materialize in EB-2 India, including EB-3 upgrades. This is starting to slow the advancement of the final action date for EB-2 India, which will advance only one and on-half months in March (from August 1, 2008 to October 15, 2008). Charlie expects this category to advance at a rate of up to three months. When EB-1 and EB-2 Worldwide demand is assessed in June, more numbers may fall down to this category which could impact its movement.

EB-5 China. Charlie predicts that EB-5 China will continue to advance slowly and at a rate which would avoid the need for a retrogression.

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You may access the April 2016 Visa Bulletin here and the March 2016 Visa Bulletin here.

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