Priority date updates from AILA and Charlie Oppenheim

April 2014:On Monday April 21, 2014 Mr. Charlie Oppenheim of the Department of State’s Visa Office (VO) spoke to AILA members Roberta Freedman and Michael Nowlan regarding what his office is currently seeing with regard to visa demand and what might be expected in terms of Visa Bulletin movement at this time. Below are notes from that call. It is important for AILA members to remember that these notes are based on Mr. Oppenheim’s impressions at this time, and are subject to change based on usage and/or new developments. All projections, including those that are noted in the Visa Bulletin are subject to change depending on demand that is reported or observed by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) in “real time.”General Notes: The National Visa Center (NVC) is now sending out requests for payments 8 to 12 months in advance the of the priority date becoming “current.” The NVC had previously been contacting applicants 12 to 18 months in advance. Applicants processing abroad appear to be waiting until their priority date is current, or almost current, to pay the fees. This could be to avoid the long delay where the visa fees are held without a visa being issued. Once payment is received, it helps the VO confirm the actual demand overseas.

The VO expects to be able to make predictions regarding worldwide (WW) FB-2A, WW EB-3 and China EB-3 in May (see below) which could be realized in the July Visa Bulletin, or perhaps sooner.

Family Based Second Preference 2A Worldwide (FB-2A):

• Demand is starting to catch up. FB-2A for Mexico will retrogress soon and more than the WW reported dates. It appears that the WW FB-2A category will also retrogress, perhaps back to 2012 in the June or July Visa Bulletin.
• Why the retrogression? USCIS seems to be processing more approvals. It is possible that some FB-2A beneficiaries were holding off on filing for green cards in anticipation of comprehensive immigration reform, and demand is now “catching up” to the posted dates.
• 85% to 95% of these cases are processed at U.S. consulates.
• The VO was not able to confirm whether I-601 processing by USCIS had a positive or negative impact on the demand for visa numbers. The NVC may have that data.

Family Based Second Preference 2B Worldwide (FB-2B):

• Demand is down right now, so movement is expected to continue to advance.
• It is likely the same scenario will occur in the next fiscal year that occurred with WW FB-2A. Specifically, that demand will increase as the category is advanced and then there will be high demand, which will reduce forward movement.

Employment Based 5th Preference China (EB-5):

• China EB5 could retrogress later this year, possibly August or September.
• Retrogression for China EB-5 in the 2015 fiscal year seems almost inevitable, as there are over 7,000 I-526 applications pending and 80% are from China.
• More on this topic is expected to be known in the next few weeks, and will be shared at an upcoming panel in May with AILA Past-President Bernie Wolfsdorf.

Employment Based 1st Preference (EB-1):

• It is still a little early in the fiscal year to know how many unused cases will drop down into EB-2. EB-1 usage is heavier this year than last year.

Employment Based 2nd Preference India (EB-2):

• It is possible in August, but more likely in September, that India EB-2 will open at 1/1/2008 or perhaps later in 2008, in order to utilize the rest of the EB-2 visa numbers that were unused by the WW categories.
• How many numbers will be utilized depends on EB-1 and EB-2 usage in the WW categories for the rest of the fiscal year (it could be 5,000 or more). This would be less than what was available in fiscal year 2013.
• No expected changes for WW EB-2.

Employment Based 3rd Preference Worldwide (EB-3):

• The VO has limited knowledge as to the number of eligible applicants, and USCIS has encouraged DOS to “move the category forward” over the last 5 months. Demand appears to be increasing, thus, it is unlikely in the short run that the category will move forward. In fact, if current demand continues, something may have to be done as early as May 2014 to slow the demand in this category.
• The last quarter of the fiscal year for 2014 does not look good, and no movement, or retrogression, is possible.PRACTICE POINTER: Do not delay on filing I-485 adjustment of status cases. WW EB-3 could retrogress as early as May or June so encourage your clients to file their cases now if their priority dates are current. The category may not be available as early as May.

Employment Based 3rd Preference China (EB-3):

• Many Chinese nationals who were waiting in the EB-2 category have been filing to “downgrade” from EB-2 to EB-3, and the result of these requests will be reflected in the coming months. For more information, see “Multiple I-140s, Priority Date Retention, and the 2013 China EB-2/EB-3 Anomaly.“
• High demand is expected to continue in this category and a correction may be reflected as early as the May or June Visa Bulletin, depending on demand.
• If China FB-2A retrogresses because of the WW FB-2A retrogression discussed above, the unused FB demand could be used by China EB-3.PRACTICE POINTER: Do not delay on filing I-485 adjustment of status cases. China EB-3 could retrogress as early as May or June, so encourage your clients to file their cases now if their priority dates are current. The category may not be available as early as May.