The monthly visa bulletin issued by the Department of State is one of the most closely watched and anticipated government communications in the immigration community. We receive instant updates and are able to comment and analyze each visa bulletin promptly upon its issuance. Our clients benefit from our visa bulletin efforts by knowing as early in advance as possible about the potential benefits and developments that may arise from forward or backward movements in the visa numbers. If you would like to learn more about our immigration law practice or if you would like to request our services, please contact us. Additionally, you can subscribe to our email newsletter to receive visa bulletin updates via email as soon as they are available to us.
Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim. Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State. For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards. He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month. Our access and proximity to Mr. Oppenheim allows us to provide immediate updates on expected Visa Bulletin movements and we are proud to be among the first to report.
We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current. As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some sense of the movement of the priority dates and also on short- and long-term immigrant visa number trends.
Summary of Mr. Oppenheim’s Key Points
No movement is expected in EB-2 and EB-3 China. EB-2 India may move forward very gradually over the next few months with EB-2 ROW and EB-1 India/China are expected to have a cutoff date within the last two Visa Bulletins for the fiscal year (August or September 2016).
General Visa Number Trends
Mr. Oppenheim spent a few minutes to describe the visa number allocation process and reiterated the fact that in the employment-based context, especially, the demand for visa numbers is greater because of dependents being added — each green card application case is, therefore, “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children). For example, Mr. Oppenheim has previously indicated that in the not-so-distant past, each employment-based India case took 1.4 visa numbers on average while right now, each employment-based India case takes on average 2.5 visa numbers.
As a result, and in recognition of the additional fact that many EB-3 India and China candidates are now eligible for porting and are now applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in addition to EB-2 visa numbers, are expected to remain oversubscribed, particularly for Indian nationals.
He also indicated that there is a significant number of EB-3 to EB-2 India porting cases and the mechanics of the EB-3 to EB-2 porting do not allow advance notification to the Department of State’s Visa Office. This causes a significant number of EB-3 to EB-2 porting cases to “appear” without advance warning to the Visa Office and, as a result, the Visa Office has to hold cutoff dates back (or to retrogress) to accommodate such porting case.
Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news for those hoping for fast cutoff date advancement. Mr. Oppenheim shared that he sees a significantly higher than normal demand in the employment-based categories – often two times the historical and expected amount. This, naturally, causes him to hold back the cutoff dates or, as we say in the June 2016 Visa Bulletin, to retrogress significantly.
Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years. This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India forward movement.
On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December, and January visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).
Visa Bulletin Predictions – Employment-Based
Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months. Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.
EB-1 Rest of World (ROW). This category is expected to remain current throughout the fiscal year.
EB-1 India and China. Due to high demand in this category, there is high likelihood that a cutoff date will be instituted by the September Visa Bulletin.
EB-2 ROW. Due to high demand, it is possible that this category will have a cutoff date by the September Visa Bulletin.
EB-2 China. No movement is expected for the remainder of the fiscal year.
EB-2 India. Likely to stay one week ahead of EB-3 India; possible very gradual forward movement over the next few months.
EB-3 ROW. This category is expected to move forward gradually over the next months to continue to stimulate “demand”.
EB-3 China. No movement is expected for the remainder of the fiscal year.
EB-3 India. Gradual forward movement is expected with a possible cutoff date around early 2005 by September Visa Bulletin.
EB-5. Mr. Oppenheim suggested that the demand for EB-5 is at the highest level ever. For the next fiscal year EB-5 is expected to be current for everyone except EB-5 China (which takes most of the EB-5 immigrant visas).
On Predicting the Visa Bulletin Cutoff Dates
Mr. Oppenheim shared his thoughts on the ability of others outside of his office to predict reliably the cutoff date movements. He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim. There are many variables that affect the demand. For example, the recent retrogression of EB-2 India is due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases plus an unexpectedly high demand in EB-2 cases generally. Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down or retrogress EB-2 India to be able to accommodate EB-2 India applicants with early priority dates.
Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months. We urge EB-2 ROW and EB-1 India/China applicants to be aware of the possibility of a cutoff date being introduced for a month or two late in the summer. With respect to EB-2 India and China, the high demand likely means that there may not be much notable movement until the new fiscal year begins on October 1, 2016 and the annual visa number allocations are reset.
Many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2. We are happy to help analyze and assist in such EB-3 to EB-2 India porting cases.
Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.
In an order dated May 16, 2016, the U.S District Court for the Western District of Washington has dismissed the lawsuit challenging the October 2015 Visa Bulletin revisions, or the so-called “visagate.” According to the court, the visa bulletin, mainly because it had not become effective at the time of the revision, did not constitute final agency action and, as a result, the court dismissed the case on technical grounds without an opportunity to amend the claims stated. (more…)
The U.S. State Department has just released the June 2016 Visa Bulletin which is the ninth Visa Bulletin for the FY2016 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the significant retrogression in EB-2 India (4 years), EB-2 China (2¾ years) and EB-3 China (3½ years).
May 2016 Visa Bulletin – Very Limited Forward Movement for EB India; Remaining EB Categories Remain Unchanged Slows Down
The U.S. State Department has just released the May 2016 Visa Bulletin which is the eighth Visa Bulletin for the FY2016 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the lack movements across the cutoff dates for many categories. EB-2 India’s forward movement is extremely minor and slowing down which suggests that the government is seeing sufficient demand in this category which should mean that we may not see giant forward leaps over the next few months. Out of the remaining notable EB categories, only EB-3 India moves forward.
The U.S. State Department has just released the April 2016 Visa Bulletin which is the seventh Visa Bulletin for the FY2016 fiscal year. The major headline in the upcoming month’s Visa Bulletin is lack of major movements across the cutoff dates for many categories. EB-2 India’s forward movement is very minor, suggesting that the government is seeing sufficient demand in this category which should mean that we may not see giant forward leaps over the next few months.
March 2016 Visa Bulletin – Cutoff Dates Advance for Most Categories; EB China Advances Significantly
The U.S. State Department has just released the March 2016 Visa Bulletin which is the sixth Visa Bulletin for the FY2016 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the notable advancement in the cutoff dates for many categories, especially for EB-2 and EB-3 China. EB-2 India advances again, although the rate of advancing seems to slow down. The “Filing” cutoff dates advance for many categories as well.
February 2016 Visa Bulletin – Filing Cutoff Dates Remain Largely Unchanged; Very Gradual Movement in the Approval Dates; EB-2 India Advances by Seven Months
The U.S. State Department has just released the February 2016 Visa Bulletin which is the fifth Visa Bulletin for the FY2016 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the lack of any substantive movement in the Filing cutoff dates section of the Visa Bulletin, possibly caused by the October 2015 Visa Bulletin revisions and litigation. The good news is that the Final Action cutoff dates advance gradually for most categories, including EB-2 India which sees another notable forward movement. (more…)
January 2016 Visa Bulletin – Filing Cutoff Dates Remain Largely Unchanged; Very Gradual Movement in the Approval Dates; EB-2 India Advances by Eight Months
The U.S. State Department has just released the January 2016 2015 Visa Bulletin which is the fourth Visa Bulletin for the FY2016 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the lack of any substantive movement in the Filing cutoff dates section of the Visa Bulletin, possibly caused by the October 2015 Visa Bulletin revisions and litigation. The good news is that the Final Action cutoff dates advance gradually for most categories, including EB-2 India which sees another notable forward movement. (more…)
December 2015 Visa Bulletin – Filing Cutoff Dates Remain Unchanged; Very Gradual Movement in the Approval Dates
The U.S. State Department has just released the December 2015 Visa Bulletin which is the third Visa Bulletin for the new FY2016 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the lack of any movement whatsoever in the Filing cutoff dates section of the Visa Bulletin, possibly caused by the October 2015 Visa Bulletin revisions and litigation. The good news is that the Final Action cutoff dates advance gradually for most categories. (more…)
The last few weeks have brought a lot of attention to the way the Visa Bulletin cutoff dates are allocated and how USCIS uses the dates to accept I-485 filings. Starting with the initial version of the October 2015 Visa Bulletin in early September, and throughout the subsequent October 2015 Visa Bulletin revision and litigation, the discussion has been focused on what kind of I-485 adjustment of status applications can be filed with USCIS especially in connection with the “Filing” dates category recently introduced. As a result of (and also contributing to) the “confusion,” USCIS has just announced that going forward, each month, they will be making their own determination as to whether they will honor the Filing dates published in each Visa Bulletin.
Mechanics of USCIS Determination and Announcement Regarding Each Visa Bulletin I-485 Filing Dates
USCIS has announced that starting with the November 2015 Visa Bulletin, they will be evaluating the whether there are more immigrant visas available for a fiscal year than there are known applicants for such visas based on the dates published in that month’s Visa Bulletin. This means USCIS will agree to accept the Visa Bulletin “Filing” dates for the purpose of allowing I-485 applications to be filed if (and only if) USCIS determines that there are more available visa numbers than there are known (we assume based on a number of I-485 pending cases) applicants.
According to USCIS, they will be making a determination within a week of the Visa Bulletin issuance and they will be posting their decision it to their website. As of now, it appears that USCIS will simply state whether they will honor the “Filing” dates or the “Approval” dates for the purpose of accepting I-485 applications. USCIS confirms, however, that their default position is that unless indicated otherwise, the “Approval” dates will control who can file I-485 applications.
What Does This Change Mean for Future I-485 Applicants?
In practical terms, this change in USCIS’s process means that permanent residency applicants who aim to file I-485 adjustment of status will have to wait for (1) the Visa Bulletin to be issued (usually around 8th to 10th of the month) and, if they will be current under the “Filing” dates, they will need to (2) wait for another week or so for USCIS to indicate whether USCIS will honor the Visa Bulletin’s “Filing” dates or they will stick to their default “Approval” dates to determine eligibility to file I-485.
Applicants who have not filed I-485 and whose priority date will be current under the “Approval” dates will be then able to start preparing for their I-485 adjustment of status filing. However, applicants who are current under the “Filing” dates will have to wait an additional week in order to find out whether they can file I-485. Understandably, this new system by USCIS will create additional confusion and anxiety among many applicants.
CILG to Provide Updates and Clear Guidance to Applicants
As USCIS is changing their system to determine I-485 eligibility, so are we adjusting our practice of providing timely and useful information to our clients and readers. We will continue to provide Visa Bulletin alerts immediately once a Visa Bulletin is issued (please sign up for our Weekly Newsletter or Visa Bulletin alert to do so or check the Visa Bulletin section of our website). We will also start providing an immediate update on USCIS’s decision as to whether to accept the “Filing” dates as soon as it is published towards the middle of each month.
Further Updates and News
We stand with the tens of thousands of applicants who are affected by the Visa Bulletin reforms (seemingly mostly negative) over the last few weeks. We do not believe that USCIS’s decision to create their own independent (and delayed) determination on whether they should accept the “Filing” dates for I-485 filings helps the affected applicants navigate what is already a complex system. We are hopeful that USCIS and DOS will be able to come up with a solution which simplifies and expedites the application process, as opposed to making it more complex, confusing and slow.
Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.