November 2017 Visa Bulletin Check-In: Disturbing EB3 India Revelation

Most months, Charles Oppenheim, Chief of the Visa Control and Reporting Division for the U.S. Department of State (DOS), provides visa bulletin explanations and predictions. The information for the November 2017 Visa Bulletin includes updated short-term predictions, as well as a vexing revelation regarding why the employment-based, third preference (EB3) category for India has not progressed in recent months. All predictions provided relate to the final action (FA) charts.

Employment-Based, First Preference (EB1): Remaining Current for Foreseeable Future

Mr. Oppenheim continues to predict that, for the time being, EB1 will remain current for all countries of chargeability. Previously, however, he has cautioned that cutoff dates for EB1 India and China likely will become necessary sometime during fiscal year 2018 (FY18), which runs through September 30, 2018.

EB3 India: No Movement in December, Failure to Respond to RFEs Exacerbates Backlogs

The cutoff date for EB3 India is not expected to advance in the December 2017 Visa Bulletin. It is currently set at October 15, 2006. No predictions are provided for employment-based, second preference (EB2) India.

Mr. Oppenheim further reveals some interesting information related to why EB3 India has not moved at all recently – news that is sure to frustrate many Indian nationals suffering due to the lengthy backlogs in this category. But first, it is helpful to understand some basics of how immigrant visa numbers are assigned.

As many stakeholders are aware, there is a set number of immigrant visas available each fiscal year, and this number is further broken down based on various categories, along with a per-country limit that is at the root of the backlogs in the heavily oversubscribed categories. These annual visa numbers all must be used before the end of each fiscal year or be lost. So, when there are unused numbers near the end of each fiscal year, they trickle down to other categories that are oversubscribed. More details on this process can be found in the MurthyDotCom InfoArticle, Priority Dates: How Does the Visa Bulletin Work? (27.Oct.2015).

During fiscal year 2017 (FY17), which ended September 30, 2017, requests for evidence (RFEs) were issued on many pending I-485s in the EB3 India category, with the expectation that the RFEs would be responded to in a timely manner, and the cases approved in August or September 2017. Inexplicably, however, hundreds of individuals in the EB3 India category failed to respond timely. This left the U.S. Citizenship and Immigration Services (USCIS) with no choice but to allocate these visa numbers to other visa categories, rather than their being used to reduce the tremendous backlogs in EB3 India.

EB2 and EB3 China: Taking a ‘Wait-and-See’ Approach

Mr. Oppenheim is waiting to see whether the new in-person interview requirement imposed by the USCIS will impact the EB2-to-EB3 China ‘downgrade’ phenomenon. For the time being, EB3 China will see little-to-no movement in anticipation of a large number of downgrade cases. These dates will not be advanced substantially, in the interest of avoiding the need for retrogression later in the year. Still, Mr. Oppenheim expects the cutoff date for EB3 China to move forward later this fiscal year.

Employment-Based, Fifth Preference (EB5) Category: Slow Movement for China

As predicted, EB5 China advanced by about one week in the November 2017 Visa Bulletin. The EB5 category is expected to remain current for all other countries of chargeability throughout FY18.

Conclusion

The news related to EB3 India is undoubtedly aggravating to those languishing in this category. At the very least, it should serve as a reminder to closely monitor one’s own immigration cases – or to engage a team of attorneys who will take over that responsibility, and who know your immigration matters! For future updates on the visa bulletin and other immigration issues, subscribe to the MurthyBulletin.

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