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Check-in with DOS’s Charlie Oppenheim
AILA Doc. No. 14071401 | Dated June 18, 2020
The AILA DOS Liaison Committee provides monthly “check-ins” with Charlie Oppenheim, designed to keep members informed of Visa Bulletin progress and to obtain his analysis of current trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin.
Check-in with DOS’s Charlie Oppenheim: June 17, 2020
QUESTION: In last month’s Check In, Charlie said that “it is unlikely that the employment-based limit will be reached in FY2020.” If that is the case, why is Charlie not accelerating the Visa Bulletin with the hope of attracting as many approvals as possible?
ANSWER: That is exactly what I am doing, but I have to do so within reason based on processing capacity, and not strictly for the sake of movement with no reasonable expectation of actual number use.
Processing capacity at both consular posts and USCIS is diminished due to the pandemic. Currently, immigrant visa processing at consular posts abroad is limited to “mission critical” processing, which is defined at the discretion of the post and which is often limited to adjudicating cases based on compelling reasons, such as age-outs.
Immigrant visa processing at USCIS has also been constrained due to the pandemic, but their capacity has been much greater than that of the consular posts. For example, in May 2020, USCIS used over 3,600 numbers across the employment-based first and second preference categories. This contrasts with number usage in excess of 6,000 for the same categories in May 2019.
The premise that dramatically advancing the Final Action Dates will result in full (or closer to full) number usage is flawed. The agencies’ (and State’s) diminished processing capacity makes it unreasonable to expect that an even more accelerated advancement in the Final Action Dates would increase actual number usage this fiscal year. Additionally, such abrupt movements would likely result in corrective action in the form of retrogression, which should be avoided.
The good news is that there is currently a significant amount of pre-adjudicated demand in EB-1 China, EB-1 India, EB-2 China and EB-2 India that can reasonably be expected to be adjudicated despite the processing constraints. Many of these cases may only require renewed security checks to complete processing, and others may also require renewed medicals. Given USCIS’s potential processing capacity and the current status of these cases, it may be realistic to expect that USCIS will be able to finalize as many employment-based cases as its capacity allows. In contrast, while there is significant demand for EB-5 China numbers awaiting processing in Guangzhou, there is no pre-adjudicated pending demand for EB-5 China numbers at USCIS, and at this time USCIS’s data does not demonstrate significant USCIS demand for that category.
There is no data to indicate the existence of significant EB-5 China USCIS demand that would warrant a more rapid advancement of the Final Action Date in this category. As it stands, this category has advanced much more rapidly than I would have thought possible earlier in the fiscal year. Last October, I expected the best case scenario for the FY2020 EB-5 China Final Action Date to reach March 8, 2015. However, I have been pleased that the data has subsequently supported advancing the date far into the summer--to July 22, 2015. As there remains a significant amount of pending consular demand and no USCIS pending demand, sweeping advancements in this category are not supported by the data at this time. However, as the situation is constantly being monitored, future changes cannot be ruled out.
Although many employment-based preference categories are unlikely to reach their annual limits, there are two categories which are close to doing so. When a final action date was imposed for EB-3 Worldwide earlier this fiscal year, it signaled that this category was close to reaching its annual limit. Given significant early number usage, the EB-3 and EB-4 categories are most likely among the various employment-based categories to reach their annual limits this fiscal year.
QUESTION: Also, does he have an estimate as to how many visas they would be short in FY2020?
ANSWER: The processing limitations resulting from the COVID-19 related issues continue to impact number use under the various numerically controlled visa annual limits. At this time, it is estimated that there could easily be 25,000 unused numbers under FY2020 Employment-based annual limit. That estimate depends largely on the extent that processing is able to return to something approaching normal processing.
Although we are unlikely to use all of the employment-based visa numbers this fiscal year given the current family-sponsored processing capacity, there is a silver lining. The law requires that the number of unused family-sponsored visas will be added to the FY2021 employment-based annual limit.
In FY2020, we already enjoyed the second highest employment-based annual limit in recent memory—156K, which places the current per country limit at almost 11K. I expect that in FY2021 there will be over 200K employment-based numbers available—which is the highest number I can recall ever having in a fiscal year--and which translates to a 14K per country limit—a 21.5% increase over FY2020. Effectively, any unused employment-based numbers in FY2020 will be more than compensated for next year, and assuming the pandemic subsides and processing returns to normal, these excess numbers will create the possibility of significant advancement in EB-1 China, EB-1 India and EB-5 China, as well as the possibility of EB-3 Worldwide becoming current. Keep in mind that the next fiscal year is just over 3 months away.
Family-based Preference Categories
Although consular processing is minimal, the National Visa Center (NVC) is operational and continues to process cases, approximately 95% of which are family-based.
F2A remains current in July and will continue to do so throughout the remainder of FY2020. All other family-based preference categories continue to advance in July, many at the same or a slightly slower pace, with a few (F2B Philippines and F3 Mexico) advancing more rapidly.
F2B Philippines advances four months from September 1, 2010, to January 1, 2011, and F1 Philippines, F3 Philippines and F4 Philippines advance four months to June 1, 2011, August 15, 2001, and June 1, 2001 respectively. As reported in prior columns, family-based Philippines demand continues to be extremely low, with applicants not acting to become documentarily qualified in a timely manner, despite rapid advancements in the Final Action Dates. The Philippines family-based categories will continue to advance at a similar pace in the coming months.
Based on the data, there is a trend of Philippines applicants responding to the NVC Agent of Choice letter and becoming documentarily qualified within three months of when the advancement indicates their priority dates will become current and within the three months after they would become current. This behavioral trend data helps Charlie understand how to best advance the final action date to elicit responses.
F1 Worldwide (including F1 China and F1 India) advances approximately six weeks from May 22, 2014, to July 8, 2014. F1 Mexico advances three weeks from November 15, 1997, to December 8, 1997.
F2B Worldwide (including F2B China and F2B India) advances 1.5 months in June from March 15, 2015, to May 1, 2015. In July, F2B Mexico advances three weeks from February 15, 1999, to March 8, 1999.
F3 Worldwide (including F3 China and F3 India) advances three weeks in July from April 15, 2008, to May 8, 2008, and F3 Mexico also advances three weeks from June 22, 1996, to July 8, 1996.
F4 Worldwide (including F4 China) advances two weeks in July from August 8, 2006, to August 22, 2006. F4 India also advances at a pace of two weeks from January 22, 2005, to February 8, 2005. F4 Mexico advances another three weeks from May 8, 1998, to June 1, 1998.
Moving forward, Charlie expects movements in the family-based categories to remain consistent with what we have been seeing these past few months.
Employment-based Preference Categories
EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) remains current in July and should remain so through the end of this fiscal year.
In July the final action date for EB-1 China advances one week from August 15, 2017, to August 22, 2017. There are currently almost 2,000 EB-1 China adjustment of status (AOS) cases pending at USCIS. EB-1 India again advances significantly, moving forward eleven months from June 8, 2016, to May 8, 2017. This rapid advancement is made possible by the infusion of otherwise unused numbers falling up from EB-5 and the lack of significant EB-1 Worldwide demand. Charlie is consulting with USCIS regarding their processing capacity and to determine how much of the outstanding demand is close to completion in order to understand what can realistically be approved before the end of the fiscal year.
EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) remains current in July and should do so through FY2020. EB-2 China advancement slows to one week, moving modestly from November 1, 2015, to November 8, 2015. In contrast, EB-2 India advances more rapidly by three weeks, from June 12, 2009, to July 8, 2009. As with EB-1 China and EB-1 India, there is a significant amount of pre-adjudicated demand in these categories and relatively low rest of world demand.
EB-2 China and EB-2 India will certainly exceed their per country limits this year. The open question is how close the EB-2 category will be to reaching its worldwide limits.
EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) which advanced more than ten months in June, advances at a significant yet slower five month pace in July 2020 from November 8, 2017, to April 15, 2018. Similar to EB-1 India, there is a large amount of pre-adjudicated demand in EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam), making it more reliable that the advancements will result in visa issuances this fiscal year. However, as also noted above, this category is much closer to reaching its annual limit than the other categories.
EB-3 China advancement slows to one week in July from June 15, 2016, to June 22, 2016. EB-3 China Other Workers starts to advance again in July by one week from July 15, 2008, to July 22, 2008. As EB-2 China and EB-3 China both advance by one week in July, the spread between them remains the same, with EB-3 China’s final action date holding ~7.5 months ahead of EB-2 China. EB-3 India and EB-3 India Other Workers both advance two months in July from April 1, 2009, to June 1, 2009.
EB-4 Worldwide (including China, India, Philippines, and Vietnam) remains current in July. EB-4 El Salvador, Guatemala, and Honduras advances 1.5 months from December 15, 2016, to February 1, 2017 and is likely to hold at this date through the remainder of the fiscal year. EB-4 Mexico advances one week--from June 8, 2018, to June 15, 2018. Members should continue to watch EB-4 Mexico for potential movement. It is too early to predict what will happen in the remaining months of FY2020.
As previewed in last month’s column, EB-5 India (Regional and Non-Regional Centers) becomes current in July and will remain so through FY2020. EB-5 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines), Regional and Non-Regional Centers, remains current in July and will remain so through this fiscal year as well. EB-5 China (Regional and Non-Regional Centers) advances one week in July, from July 15, 2015, to July 22, 2015. EB-5 Vietnam (Regional and Non-Regional Centers) advances three weeks in July from April 22, 2017, to May 15, 2017.
Publicly available immigrant visa data is at the State Department’s website: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/immigrant-visa-statistics.html
Questions for Charlie? Please send your questions to email@example.com for inclusion in next month’s “Check-in with Charlie” column.