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Check-in with DOS’s Charlie Oppenheim

This is series of monthly reports from the AILA DOS Liaison Committee designed to keep members informed of Visa Bulletin progress and projections. Immediately following publication of each month’s Visa Bulletin, AILA will “check-in” with Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, to obtain his analysis of current trends and future projections for the various immigrant preference categories. Through these discussions, it is hoped that Charlie will provide us with additional insight, beyond the basic visa availability updates that are provided in the monthly Visa Bulletin.

Check-in with DOS’s Charlie Oppenheim: September 10, 2015

“Dates for Filing”-Not a New Concept!*

* The following overview of the changes implemented in the October Visa Bulletin is provided by AILA and is intended to provide members with additional information regarding the new Visa Bulletin format and the reason why the changes were implemented. This information is provided only by AILA and is independent of the Questions and Answers with Mr. Oppenheim that follow.

The release of the October 2015 Visa Bulletin represents an historical shift in how the State Department presents data regarding the availability of immigrant visa numbers. Beginning with the October Bulletin, the Visa Bulletin will include two charts of relevant dates for both the family- and employment-based categories: (1) the “Final Action Dates” chart; and (2) the “Dates for Filing” chart. The “Final Action Dates” chart includes the same “cut-off” data that has historically been published in the Visa Bulletin. Applicants with priority dates earlier than the “Final Action Date” that is listed for their preference category and country of chargeability are immediately eligible for final action on their immigrant visa case in that particular month. As always, if these individuals are in the United States and eligible for adjustment of status, they can immediately file their adjustment application.

Although not previously published in the Visa Bulletin, the “Dates for Filing” chart consists of the “qualifying dates” that the State Department has historically established for the purpose of sending out “agent of choice” letters for intending immigrants who will consular process. The concept of “qualifying dates” is not new, and is described in the Foreign Affairs Manual at 9 FAM 42.55 PN1.1. This date is representative of the demand, based on the information available at the time of the determination, that the State Department anticipates will be available for that particular preference category and country of chargeability at some point in the upcoming 8 to 12 months. The purpose of setting “qualifying dates” has been to elicit from applicants the necessary information and documents for their immigrant visa applications to be considered “documentarily qualified” or ready to adjudicate once their priority date is reached. This data has provided visibility into family-sponsored demand for which State is primarily responsible, which in turn minimizes any erratic movement in those cut-off dates. Once the priority date for a documentarily qualified case becomes current (i.e., is earlier than the “final action date”), the immigrant visa interview can be scheduled.

As part of the Obama Administration’s Visa Modernization Proposal, the State Department is now publishing the “qualifying dates” within the newly named “Dates for Filing” chart. Other than the publication of these dates in the Visa Bulletin, the Department of State/NVC process for issuing “agent of choice” letters has not changed.

In general, USCIS will continue to follow the “Final Action Date” chart for the acceptance of adjustment of status applications. However, if USCIS determines that there are additional visas available it may exercise its discretion to accept adjustment of status applications in accordance with the “Dates for Filing” chart. Each month, the Visa Bulletin will indicate whether USCIS will accept adjustment applications during the upcoming month in accordance with the “Dates for Filing” chart. For the month of October, USCIS has agreed to permit both family- and employment-based immigrants to use the “Dates for Filing” chart to file adjustment of status applications. Thus, individuals who have a priority date earlier than the “Filing Date” cut-off for the month of October may submit an adjustment of status application in October.

QUESTION 1: What Is the Anticipated Impact of the Addition of “Dates for Filing” to the Visa Bulletin?

Until now, the Visa Office had limited visibility into the employment-based demand for immigrant visas primarily being processed by USCIS. Though the Visa Office made educated estimates as to future demand, since these predictions were based on limited information (e.g., historical patterns, demand filed prior to subsequent retrogression of dates), unanticipated surges in demand would sometimes arise. As a result, cut-off dates in the employment-based categories have been vulnerable to fluctuation, often advancing significantly, then suddenly stopping, retrogressing, or becoming unavailable with little to no warning.

The State Department anticipates that as USCIS begins to accept adjustment applications based on the “Dates for Filing,” it will eventually have better information regarding overall immigrant visa demand. When USCIS receives an I-485 case, it pre-adjudicates the case and requests a visa number from the State Department. If the “Final Action Date” is current, the State Department will authorize an immigrant visa number and USCIS will approve the case and proceed with production of the permanent resident card. If the “Final Action Date” is not current, the State Department will be unable to authorize a visa number and the case is placed in the Visa Office’s “pending demand file.” The data maintained in the pending demand file data enables Charlie to better assess demand and move the “Final Action Dates” at a more reasonable and predictable pace over time. Based on published USCIS processing times it takes approximately six months for these cases to be received and pre-adjudicated by USCIS, so Charlie expects that he will have a better sense of overall employment-based immigrant visa demand at USCIS starting in the spring of 2016.

QUESTION 2: How will the “Dates for Filing” Change?

Charlie will determine the need for changes to the various “Dates for Filing” at the same time he is making the determination of the upcoming month’s cut-off dates. They will generally remain the same or may move forward slightly throughout the fiscal year.

QUESTION 3: Will Adding “Dates for Filing” to the Visa Bulletin Negatively Impact the “Final Action Dates”?

Although some members have expressed concerns that the addition of the “Dates for Filing” might negatively impact “Final Action Dates,” Charlie assures us that is not the case. The “Final Action Dates” listed in the October Visa Bulletin are conservative while he sees the time impact of recent changes in the dates, and they are not expected to retrogress in the foreseeable future, or without prior warning. Instead, USCIS allowing I-485 submission based upon the “Dates for Filing” will provide much needed visibility into USCIS demand which will ultimately result in more predictable and steady movement of the “Final Action Dates.” For example, earlier this year, the lack of visibility into demand initially resulted in the rapid forward movement of the cut-off date for EB-2 China in an effort to generated number use within the annual limit, which then abruptly rolled-back when demand materialized at a much higher rate than could have been anticipated. This “whiplash” phenomenon is likely to cease to occur once the new system is implemented and more reliable employment-based visa demand data is available to the State Department when determining Final Action dates.

Kudos

The State Department and USCIS have worked tirelessly over the last several months to adopt this new Visa Bulletin format, and AILA would like to commend USCIS and the Visa Office for their hard work and dedication to improving the immigration system within the bounds of existing law. In addition, we greatly appreciate Charlie’s willingness to provide his invaluable insights into the Visa Bulletin through this monthly column and for taking the time to share this information with AILA so soon after the release of the October Visa Bulletin.