Comments from DOS on Movement of Visa Cut-Off Dates
Posted Mar 30, 2001

Our Extra edition of the MurthyBulletin, posted on March 23, 2001, with the most current information on movement of immigrant visa dates, H1B LCA issues, etc. included an article entitled China and India EB2 May Become Current by May 2001. This article discussed comments by Mr. Charles Oppenheim, Chief of the Immigrant Visa Control and Reporting Division at the U.S. Department of State (DOS) Visa Office on the likely movement of what DOS calls the "visa cut-off dates" in its monthly chart.

Also on March 23, 2001, Attorney Murthy and Attorney Amano from The Law Office of Sheela Murthy attended the American Immigration Lawyers Association (AILA) Annual Spring Conference in Washington, D.C. The Conference featured a variety of speakers, both private attorneys and government officials. Mr. Charles Oppenheim of DOS was one of those speakers, and at the conference we had an opportunity to meet with him personally. During the conference, he provided further details about the visa cut-off dates and the effect of the recent law, the American Competitiveness in the Twenty-First Century Act (AC21 or ACTA) on immigrant visa cut-off dates.

As many MurthyBulletin readers are aware, AC21 changes the rules on allocation of employment immigrant visas by basically eliminating the per-country limitation. The general rule is that not more than 7% of the worldwide total of immigrant visas available in a given year shall be granted to nationals of any particular country, so each country, no matter how large or how small, has the same quota amount available. Many smaller countries never use their entire allocation, while nationals of countries like China, India, or the Philippines, have been subject to waiting lists because the number of applicants far exceeds the number of immigrant visas available each year. Under AC21, the unused employment-based visa numbers can be reallocated to applicants from the above "oversubscribed" countries.

Mr. Oppenheim explained that there are quarterly limits on the amount of visa numbers that DOS can make available at any given time. This quarterly limitation was a key reason why DOS was not able to make all categories current immediately upon the enactment of AC21. In addition, INS began to steadily improve the processing time for I-485s, so more of the quota was used as more cases were completed by the INS.

Still, there has been significant movement in recent months, in both EB2 and EB3. While much attention has been focused on the India and China quotas, Mr. Oppenheim indicated that Philippines was about to be oversubscribed in EB3, and there would now be a waiting list for Philippines were it not for AC21. As we mentioned in the above-cited article, Mr. Oppenheim also expects to make India and China EB2 current by May or June 2001. During the first five months of the current fiscal year (starting October 1, 2000), DOS was able to use 22,000 additional visa numbers for China and India.

We also mentioned in our prior article that EB3 will probably move approximately four to five months per month, for both India and China, and both should become current by about January 2002. According to Mr. Oppenheim, most of the people currently applying for immigrant visas or adjustment of status (I-485) in the EB3 category have priority dates that are one to two years before the cut-off date on the chart, so there are many more cases still in the pipeline.

Another important change brought by AC21 is the recapture of unused employment-based immigrant visas from the 1999 and 2000 fiscal years. While this recapture is extremely helpful, it is only a temporary measure. Mr. Oppenheim opined that unless another recapture takes place in the future, India and China could again become oversubscribed due to high demand, possibly after about 2 years.

One procedural improvement the DOS is making is to automate the visa allocation system. Currently, when a Consulate approves an immigrant visa application or when the INS approves an application for adjustment of status, it is necessary to send a facsimile to the DOS to request allocation of a visa number. While at East Coast INS offices the response usually arrives within 40 minutes, when a West Coast INS office conducts an interview in the afternoon, the DOS office in Washington is likely to be closed. The applicant must then return to the INS office on another day to obtain the approval and get the passport stamped. DOS is in the process of changing to an online system that will allow the Consulate or INS office to obtain information on how many visas are available, and to update the count instantaneously so that all locations will have access to the latest information.

We are pleased that our government offices are moving into the 21^st Century and using technology to automate processes and bring about efficiencies in our system of government.