DOS Provides Further Visa Bulletin Details and Predictions

On May 18, 2016, several Murthy Law Firm attorneys attended an American Immigration Lawyers Association (AILA) meeting at which Charles Oppenheim, Chief of the Visa Control and Reporting Division, spoke. Mr. Oppenheim’s responsibilities include determining the cutoff dates in the monthly Department of State (DOS) visa bulletin. During the meeting, Mr. Oppenheim offered several predictions, including the possibility of establishing a never-before-seen cutoff date in the employment-based, second preference (EB2) worldwide category, as well as the potential for a cutoff date in the employment-based, first preference (EB1) category for India and China.

How Cutoff Dates are Established

The visa bulletin cutoff dates are estimates, based on historical patterns and available data. The data for adjustment-of-status cases comes from the U.S. Citizenship and Immigration Services (USCIS), but for a number of reasons, the USCIS cannot always provide detailed, accurate visa number demand data. This lack of visibility and transparency, in part, accounts for the sometimes-erratic movement of visa bulletin cutoff dates.

From time to time, the DOS severely retrogresses a cutoff date in a particular category. For example, the EB2 India cutoff date for June 2016 retrogressed by approximately four years. This extreme retrogression is an alternative to the prior practice of declaring the category unavailable when the DOS could not issue any visa numbers in a particular month. The notation of unavailable, however, caused confusion among applicants. Accordingly, the DOS no longer uses unavailable as a designation, and instead selects a cutoff date that will not result in the issuance of any additional visa numbers.

Lack of Otherwise Unused Numbers

There are statutory limits on the number of immigrant visas available for each employment-based category. There are also per-country limits within each category. If there are extra, otherwise unused numbers within a particular category, these are shifted in a set order to other employment-based categories with greater demand.

The otherwise unused number shift is the reason, for example, EB1 stays current for all countries. Over the past few months, however, the demand for visa numbers in EB1 and EB2 has exceeded projections by 45-50 percent. This limits or eliminates any excess numbers that otherwise would be made available to the countries with high demand.

Specific Employment-Based Categories

EB1 Cutoff Date Could be Established

As explained above, the demand for EB1 worldwide visa numbers has exploded, without explanation. Assuming that this trend continues, the DOS anticipates having to establish a cutoff date for India and China in the coming months. The category then would return to current on October 1, 2016, which is the start of the new fiscal year.

Possible Cutoff Date for EB2 Worldwide

The extraordinary demand for EB2 worldwide visa numbers, if unabated, will require the establishment of a cutoff date in the worldwide category by September. This has never happened before. The lack of otherwise unused EB2 visa numbers means extreme shortages in EB2 India and China. The EB2 China cutoff date is not expected to progress for the remainder of the fiscal year. EB2 India is expected to stay one week ahead of the employment-based, third preference (EB3) category for India.

Little Demand for EB3 Worldwide Category

The DOS reports that there is very little demand in the EB3 worldwide, category. Thus, the cutoff date remains close to current. EB3 India will benefit by the shift of some otherwise unused visa numbers from EB3 worldwide. DOS predictions are that EB3 India will advance to February or March 2005 by September 2016.

Employment-Based, Fourth Preference (EB4)

The demand for EB4 visa numbers arises from a rush of special immigrant juvenile (SIJS) cases. The DOS reports that, during the first seven months of the current fiscal year, more than 4,700 EB4 visa numbers were utilized – only a few less than for all of the previous fiscal year.

Employment-Based, Fifth Preference (EB5)

The DOS saw visa number requests in the EB5 category for more cases with earlier priority dates. This is attributable to a clearing out of older (2013 – 2014) cases filed by Chinese nationals. This category will stay current for all countries other than China. The demand for EB5 China numbers was described as “extraordinary,” with more than 20,000 such petitions being held at the DOS National Visa Center.

Conclusion

As always, while the content of Mr. Oppenheim’s news may not be welcome, the availability and clarity of his explanations is always appreciated. Check MurthyDotCom regularly, or subscribe to the free MurthyBulletin to receive future updates on the visa bulletin and other immigration law matters.

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