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September 2019 Visa Bulletin Commentary

The September 2019 Visa Bulletin was released last week, bringing further retrogression in many employment-based preference categories. Most significantly, EB1 India is currently unavailable, meaning that visas are not authorized for anyone under this category regardless of priority date. Moreover, we have received breaking news that, despite the dates listed on this visa bulletin, the entire EB3 category (including EB3 All Countries, EB3 India, and EB3 China) has now become unavailable, and will remain so throughout the remainder of the fiscal year.

 

While previous projections were optimistic that these categories would recover to their previous June 2019 or July 2019 levels, the current outlook is much less favorable. EB2 is expected to become current again in October or November; however EB1 All Countries is not expected to become current anytime soon, and EB1 India may not recover for the foreseeable future. We will continue to monitor trends and developments closely and inform our readers about what the Department of State is projecting for future months.

 

Commentary:

 

September 2019

 

For all countries except India, China, Philippines, and Mexico: F2A category priority date remains current, F2B preference advances 151 days to a PD of 1 June 2014, F4 category advances 31 days to 1 November 2006; EB1 advances 457 days to 1 October 2017; EB2 advances 365 days to 1 January 2018; and EB3 remains at 1 July 2016.

 

For India only: F2A category remains current, F2B preference advances 151 days to 1 June 2014, F4 advances 7 days to a PD of 22 September 2004; EB1 is currently unavailable; EB2 advances 6 days to 8 May 2009; EB3 further retrogresses to a PD of 1 July 2005; EB5 Non-Regional Center and Regional Center advances 1052 days (2 years, 10 months, and 17 days) to a PD of 1 September 2017.

 

For China only: EB1 further retrogresses to a PD of 1 January 2014; EB2 remains at a PD of 1 January 2017; EB3 retrogresses to a PD of 1 January 2014; EB5 Non-Regional Center and Regional Center advance 7 days to a PD of 22 October 2014.

 

For Vietnam only: EB5 Non-Regional Center and Regional Center advances 7 days to a PD of 22 October 2014.

 

Can file your immigrant applications if PD before:

 

F2A 1 June 2019; F2B 15 October 2014 for All Areas, except 1 March 1999 for Mexico and 1 February 2009 for Philippines; F4 8 March 2007 for All Areas, except 22 May 2005 for India, 22 December 1998 for Mexico, and 1 January 1999 for Philippines.

 

EB1 1 September 2018 for all countries, except 1 October 2017 for China and India; EB2 All countries except India and China are current; EB3 All countries except India, China, and Philippines are current; EB2 India remains at 1 June 2009; EB3 India remains at 1 April 2010; EB2 China advances 120 days to 1 June 2017; EB3 China remains at 1 June 2016; EB5 China (RC and Non-RC) advances 21 days to 22 November 2014; Vietnam is not individually listed and should use the all countries category.

 

Notes from Tahmina:

 

In light of the No-RFE memo as well the NTA memos, it is important that those waiting to receive their green cards maintain their underlying visa status.

 

Notes copied from the Department of State regarding Visa availability:

 

D.  AVAILABILITY OF EMPLOYMENT-BASED FIRST, SECOND and FIFTH PREFERENCE NUMBERS

There has been a combination of a dramatic change in the USCIS demand pattern for adjustment of status applicants during July, and a larger than anticipated return of unused numbers which had been provided to consular offices for July use.  As a result, it has been possible to advance the Employment First and Second preference September final action dates for most countries, as well as the India Employment Fifth preference.

E.  SEVERAL EMPLOYMENT-BASED PREFERENCE CATEGORIES HAVE RETROGRESSED OR BECOME “UNAVAILABLE” FOR THE REMAINDER OF FISCAL YEAR 2019

Worldwide Employment Fourth (E4):  Since June, USCIS demand for E4 numbers, primarily for Juvenile Court Dependent adjustment of status applicants, has increased dramatically. This has resulted in the E4 annual limit having been reached.  Therefore, it has been necessary to make the entire E4 category “Unavailable” for September, and implement this effective immediately.

China – Employment First (E1) and Third Preferences (E3): Despite the earlier retrogression of the China E1 final action date, USCIS demand for adjustment of status applicants with priority dates earlier than that date remains excessive. Therefore, it has been necessary to retrogress the China E1 final action date once again.   A dramatic increase in USCIS demand for China E3 numbers has also required the retrogression of that date in an effort to limit future number use under that annual limit.  Both of these retrogressed September dates will be imposed immediately.

India – Employment First (E1) and Third Preferences (E3): Despite the earlier retrogression of the India E1 and E3 final action dates, USCIS demand for adjustment of status applicants with priority dates earlier than those dates remained excessive. Therefore, it was necessary to make the India E1 final action date “Unavailable” earlier in July, and it will remain so for the remainder of FY-2019.  The India Employment Third preference date has been retrogressed and that date will be imposed immediately.

It is likely that corrective action will also be required for other preferences prior to the end of the fiscal year.

Numbers will once again be available for applicants in the above mentioned preferences beginning October 1, 2019 under the FY-2020 annual numerical limitations.  Every effort will be made to return these final action dates to (at least) the dates which had originally been announced for August.

F.  DETERMINATION OF THE NUMERICAL LIMITS ON IMMIGRANTS REQUIRED UNDER THE TERMS OF THE IMMIGRATION AND NATIONALITY ACT (INA)

The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an annual basis.  These calculations are based in part on data provided by U.S. Citizenship and Immigration Services (USCIS) regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year.  Without this information, it is impossible to make an official determination of the annual limits.  To avoid delays in processing while waiting for the USCIS data, the Visa Office (VO) bases allocations on the minimum annual limits outlined in Section 201 of the INA.  On July 17th, USCIS provided the required data to VO.

The Department of State has determined the Family and Employment preference numerical limits for FY-2019 in accordance with the terms of Section 201 of the INA.  These numerical limitations for FY-2019 are as follows:

Worldwide Family-Sponsored preference limit:  226,000
Worldwide Employment-Based preference limit:  141,918

Under INA Section 202(a), the per-country limit is fixed at 7% of the family and employment annual limits.  For FY-2019 the per-country limit is 25,754.  The dependent area annual limit is 2%, or 7,358.

 

Notes copied from DOS’s Charlie Oppenheim:

 

Employment-based Preference Categories

EB-1:

As we enter FY2020, AILA members can expect to see the EB-1 categories continue to be separated into three different Final Action Dates-one for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam), two others for EB-1 China and EB-1 India respectively.

Charlie would like to remind AILA members that they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. Charlie is hesitant to predict what the Final Action Dates will be in the EB-1 categories for October. While he hopes the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover. However, regarding EB-1 India, which is now unavailable, Charlie is confident that it will not recover in October and may not do so for the foreseeable future.

In September 2019, EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) advances 15 months, from July 1, 2016 to October 1, 2017. The reason these categories were able to advance is that the heavy surge in USCIS demand for that began in mid-May through early July 2019 did not persist. Not only did this demand not persist, but the return of unused EB-1 numbers from consular posts abroad provided additional room to allow the advancement of these categories.

In contrast, EB-1 India has become unavailable due to continued high demand, which resulted in full use of its numbers for FY19. The pent-up demand that will continue to accrue for the 6 weeks that this category remains unavailable will further delay the category’s ability to recover.

EB-1 China demand remains strong, resulting in a retrogression of 2.5 years in the September visa bulletin to January 1, 2014 in order to limit any use of numbers for the remainder of the year.

EB-2:

EB-2 Worldwide (including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines, and EB-2 Vietnam) advances one year to January 1, 2018, while EB-2 India inches forward 6 days to May 8, 2009. EB-2 China holds at January 1, 2017 for September 2019. Like EB-1 Worldwide, the movement for EB-2 Worldwide is due to the lessened demand and additional room made available after consular posts returned unused numbers.

Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide, including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines, and EB-2 Vietnam) will be able to recover to current in either October or November 2019.

EB-3:

For more information see the “Breaking News” item at the top of this month’s check-in. Charlie is unable to say when the Final Action Dates for EB-3 Worldwide, EB-3 El Salvador, Guatemala, Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam, will once again become current. While it is possible that this could occur in October 2019, it might also take longer. Charlie hopes that there can be rapid recovery for EB-3 India, which also retrogressed earlier, over a period of several months. However, a timeline for recovery is not guaranteed.

Already scheduled USCIS interviews may continue in USCIS’ discretion for all categories that have either retrogressed or become “unavailable”. If the application is approvable, rather than receiving a visa number immediately, USCIS’s request for a visa number will be placed in Charlie’s pending demand file and will be authorized for use once the Final Action Date advances beyond the applicant’s priority date. Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner without the volatility which has been experienced.

For September 2019, EB-3 China Other Workers holds at November 22, 2007.