Visa Bulletin Predictions from Mr. Charles Oppenheim & More...

US Non-Immigrants Blog - Immigration News Update 

27 October 2011

These are many things that are currently happening at the EB category level. We would like to capture our take and analysis in this article.

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Visa Bulletin Predictions from Mr. Charles Oppenheim

Source - http://www.cilawgroup.com/news/2011/10/26/visa-bulletin-predictions-and-updates-from-charles-oppenheim-october-26-2011/

Capital Immigration Law Group and others law firms recently met with Charles Oppenheim in Washington, DC.  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.

Capital Immigration Law Group’s summary from meeting with Mr. Oppenheim’s 

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-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year.

EB-2 China and EB-2 India.  These two categories are where the most action is going to be over the next few months.  Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few visa bulletins.  It is possible that the December 2011 Visa Bulletin would advance EB-2 India and China to at least March 1, 2008 or even further.   Similar forward movement may be expected in the January 2012 and February 2012 Visa Bulletins.     Mr. Oppenheim cautioned, however, that if there is high demand (number of filings) in the EB-2 category, he may hold or even retrogress towards the summer of 2012.   He noted that there is usually a 4-6 month gap between filing of an I-485 adjustment application and when a visa number is actually requested and allocated — this means that EB-2 India and China I-485 applications filed in the fall will be need visa numbers in spring/summer of 2012 and this is when retrogression may happen.

EB-3 Rest of World (ROW).  This category is expected to move gradually slightly forward for the next few visa bulletins — anticipated forward movement of 3 to 4 weeks per month.

EB-3 China.  This category is expected to move slowly forward – by 1-3 weeks per month for the next few months.

EB-3 India.  Unfortunately, this category is, according to Mr. Oppenheim, “ridiculously oversubscribed” and forward movement, if any, will be very slow.    This category is expected to remain unchanged or to move very slowly forward (by a 1-2 weeks or so).   This is mainly caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   Mr. Oppenheim suggested that since the summer of 2007, no new EB-3 India cases have been filed and there is a significant number of EB-3 India candidates waiting for the priority dates to move forward.

Our take

EB-2 China and EB-2 India.- After such estimation from Mr. Charlie Oppenheim, it is clear that we will see cut-off date of 01 March 2008 or better pretty soon.

Previously this was analyzed in detail herein, and is now currently summarized below for reference.

"Demand Data for EB2-IC reduced by 5400 compared to last month to account for movement upto July 15th  2007 in October Visa Bulletin. This reduction in demand allowed DOS to move dates to 01 Nov  2007 for  the current bulletin. We expect that total movement for this month could bring in 13,976 (inclusive 2,675 from demand data) demand. So far for last two months, USCIS would eventually see demand around 5400+13976 = 19,376 once these applications would convert into documentary qualified applications. Out of these, 8,000 is known demand upto July 2007. As we all know, DOS will not be able to sustain this ready-to-use demand for long time unless it will retrogress dates next visa bulletin or eventually start using quarterly spillover. 

I have a very strong feeling that DOS really want to use quarterly spillover, and hence we are not seeing many EB2-IC approvals from TSC yet. So far, NSC is in par with the EB1 and EB2-ROW demand but TSC still have some catching up to do in this regard. Once EB2-ROW and EB1 demand is satisfied, apparently it will be easy for USCIS/DOS to rationalize use of left over quarterly visas as spillover. Mr. Oppenheim clearly mentioned in the visa bulletin that some more significant movement in expected during this fiscal year before he will decide to pull the plug. Total visa demand for EB2-IC  that he may have in mind can be any where from 25000-30000 including annual visa quota. We already know 19,376 is already taken care of and atleast 5600 - 10,600 more intake is expected for this year at some point. In  terms of cut-off dates this means, we can see January 2008 - April 2008 current anytime.

It is difficult to guess when such movement will happen but atleast 3-6 months total  movement in one or two steps is expected. Such movement for December or January visa bulletin cannot be discarded at this time although current bulletin clearly mentioned such movement should not be expected as a norm on monthly basis. Eventually when dates will retrogress, it is expected to reach June 2007 PD in worst case. We still believe for current fiscal year November 2007 will receive green card and December 2007-January 2008 will be on the edge. Individuals with PD from Jan- June 2008 can expect EAD, with June 2008 having slim chance and March 2008 best"

 EB-3 (ROW-M-P) - Based on Mr. Oppenheim's estimation and data from currently released October 2011  I-485 pending inventory report, we expect dates for EB3-ROW-M-P to atleast reach PD July 2006-September 2006 in FY 2012. EB3-P demand is high for calendar year 2006 which may restrict cut-off date movement . Realistically, August 2006 is still plausible.

EB3-India is expected to reach 08 November 2002 by end of FY 2012.

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October 2011 I-485 Pending Inventory Released

Source - USCIS

USCIS yesterday released I-485 pending inventory upto 01 October 2011. Please note this inventory is only for Service Centers and Field Offices, and does not contain consular processing cases. Dependents are included. Here is a quick summary of the I-485 inventory when compared to previous inventories,

EB1 demand : In general, EB1 is highly backlogged with atleast 14072 applications still pending at Service Centers. This is high when compared year-to-year to similar inventories previously released in October 2010 and August 2009. Generally with start of an each fiscal year, such pending numbers were within 5000-8000. This backlog is highly affected by Kazarian Memo and with time can affect spillover to EB2 category if such demand or backlog would continuously grow for rest of the year.

EB2-ROW-M-P demand - When compared to previous some inventories year to year (or quarter to quarter) current inventory for this category stands at least 20% higher. If such demand is maintained for rest of the year, spillover received will be minimum from this category. It is estimated that EB2-IC received atleast 6000 unused visa numbers from this category in FY 2011. At current rate, such numbers can be as low as 1000-2000,

EB2-IC demand - From October 2010 to October 2011, reduction in inventory for this category is 27386.  We should note that last year EB2-I used it's annual limit of 2803 just to satisfy porting demand. Adding these two together, we can say 30,189 visas were used alone for EB2-IC; which also matches closely to our estimated (spillover + annual limit) for FY 2011. Estimated worst-case pending PWMB + new porting still pending at USCIS from the inventory is around 4067 = 8965 + 3102 - 8000

EB3- ROW demand - Inventory for EB3-ROW matches closely with demand data last released for November visa bulletin. As mentioned before that year to year inventory for EB3-ROW does not make sense as some so called 'hidden demand' always appear. We will expect to see atleast PD July 2006 for FY 2012 due to high EB3-P demand of 7725 for CY 2006. Please note that CP demand for EB3-P is not included in this  inventory. In past such demand were as high as 30% for CP cases.

EB3- India - Inventory for EB3-India compared to last fiscal year reduced by 4884 (2803 annual limit + 2081 estimated porting and/or case abandonment upto January 2003 ). Minimum movement around 08 November 2002 is expected. Movement can be little more if more folks from November-December 2002 will port for this year.

EB4- demand - Last year, EB4 demand was high or at par, and hence no spillover was received from this category. Demand for this category looks 50% less compared to last year. This category should be followed closely for rest of the year. Some spillover may be possible from this category.

EB5- demand - EB5 demand is similar level as last year and may yield around 3000-4000 unused visa numbers if similar demand is seen in FY 2012.

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H.R. 3012 approved by the Judiciary Committee and Moved to House Floor

The Fairness for High-Skilled Immigrants Act, H.R. 3012, was introduced by Representative Jason Chaffetz (R-UT) on September 22, 2011 and was approved today by judiciary committee for consideration in chamber. Please see below the steps that bill has to undergo before becoming a law. Bill  has currently completed Step 6 (see below). The effect of this bill on different EB categories will be presented once bill is passed and becomes a law.

The bill aims to eliminate per-country visa limits, which are currently causing severe backlogs in green card. As of right now, the Immigration and Nationality Act allows for only 140,000 employment-based visas to be allocated each year.  At present, the percentage of visas that can be allocated to any one country is capped  at  7% percent of all of the employment-based visas available.

Under the Fairness for High-Skilled Immigrants Act, , the per-country limit on employment-based visas would be eliminated by 2015 after a 3 year phase-in period.  During the 3 year transition, the vast majority of Employment Based visas would be allocated on first-in-first out basis in order to eliminate the current backlogs. In FY 2012, backlogged countries would receive unreserved visas - 85% of the visa allocation. In FY 2013 and FY 2014  they would receive 90% of the visa allocations.

H.R. 3012 also  increases from 7% to  15%  percent the total number of available visas regarding per-country restrictions for family-based immigrants.

  

How a Bill Becomes Law?

There are potentially 10 steps a bill can go through before becoming a law. Below is a description of each step in the process, using the Genetic Information Non-Discrimination Act of 2003 (S. 1053), as an example.

Step 1: A Bill Is Born

Anyone may draft a bill; however, only members of Congress can introduce legislation, and, by doing so, become the sponsor(s). The president, a member of the cabinet or the head of a federal agency can also propose legislation, although a member of Congress must introduce it.

Step 2: Committee Action

As soon as a bill is introduced, it is referred to a committee. At this point the bill is examined carefully and its chances for passage are first determined. If the committee does not act on a bill, the bill is effectively "dead."

Step 3: Subcommittee Review

Often, bills are referred to a subcommittee for study and hearings. Hearings provide the opportunity to put on the record the views of the executive branch, experts, other public officials and supporters, and opponents of the legislation.

Step 4: Mark up

When the hearings are completed, the subcommittee may meet to "mark up" the bill; that is, make changes and amendments prior to recommending the bill to the full committee. If a subcommittee votes not to report legislation to the full committee, the bill dies. If the committee votes for the bill, it is sent to the floor.

Step 5: Committee Action to Report a Bill

After receiving a subcommittee's report on a bill the full committee votes on its recommendation to the House or Senate. This procedure is called "ordering a bill reported."

Step 6: Voting

After the debate and the approval of any amendments, the bill is passed or defeated by the members voting.

Step 7: Referral to Other Chamber

When the House or Senate passes a bill, it is referred to the other chamber, where it usually follows the same route through committee and floor action. This chamber may approve the bill as received, reject it, ignore it, or change it.

Step 8: Conference Committee Action

When the actions of the other chamber significantly alter the bill, a conference committee is formed to reconcile the differences between the House and Senate versions. If the conferees are unable to reach agreement, the legislation dies. If agreement is reached, a conference report is prepared describing the committee members' recommendations for changes. Both the House and Senate must approve the conference report.

Step 9: Final Action

After both the House and Senate have approved a bill in identical form, it is sent to the president. If the president approves of the legislation, he signs it and it becomes law. Or, if the president takes no action for ten days, while Congress is in session, it automatically becomes law. If the president opposes the bill he can veto it; or if he takes no action after the Congress has adjourned its second session, it is a "pocket veto" and the legislation dies.

Step 10: Overriding a Veto

If the president vetoes a bill, Congress may attempt to "override the veto." If both the Senate and the House pass the bill by a two-thirds majority, the president's veto is overruled and the bill becomes a law.

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Understanding Visa Bulletin Cut-Off Date Determination

Role of DOS

The State Department (DOS) is responsible for the allocation of numerically limited immigrant visa numbers under the authority granted by section 203 of the Immigration and Nationality Act (INA). These visa numbers are allocated based on congressionally mandated preferences that assign an overall total, limits for each category and per country limits within each category.

The Immigrant Visa Control and Reporting Division’s main responsibility is the administration of the complex series of annual numerical limitations on immigrant visas, subdivided by preference category and country, which are set by the INA. Where demand exists, DOS goal is to have the issuance level come as close as possible to 100% of the numbers available each year without exceeding the limits that Congress has established. DOS also want to maintain a steady flow of applications throughout the year to ensure appropriate use of government resources and to provide good customer service to applicants. Over the past years, DOS have a proven record of using over 95 percent of the annual worldwide numerical limit.

Role of USCIS
The Department works closely with United States Citizenship and Immigration Service (USCIS) on data exchange to allow for maximum use of numbers under the annual limits, and in a stable, predictable manner. This is extremely important in the Employment based categories, where USCIS currently uses approximately 90 percent of all available visa numbers. Section 203(g) of the INA directs the Secretary of State to make reasonable estimates of anticipated number use in order to maximize number use under annual limits. When making such estimates it is necessary to take into consideration a number of variables based on the best information which is available when those estimates are being made. Should there be a change which could not be anticipated it can have an impact on number use. This makes the determination of the monthly cut-off date particularly difficult at the end of the fiscal year since there is little if any time to make any necessary adjustments. While DOS always strive to reach 100% goal of the numbers allocated, increasing percentage above 95 percent is difficult given that DOS is statutorily barred from exceeding the annual limits.


DOS working with USCIS, Consulates and Embassies
On any given day, immigrant visas are issued at about 130 embassies and consulates overseas. Adjustments of status (which use the same numbers) are granted at about 90 - 100 domestic USCIS offices. The State Department tracks visa number usage and requests from consular sections around the world and USCIS. On a monthly basis the Visa Office determines the number of visas which can be allocated in each visa category and to each country on a worldwide basis. The process developed for managing the numbers throughout the year requires that numbers are made available by adjusting the cutoff date for each category and each country on a monthly basis. Cutoff dates for all countries except China, India, Mexico and the Philippines are currently the same every month in every category. Because demand for numbers exceeds annual per-country numerical limits for these four countries, they have their own cutoff dates in some categories.

The monthly visa bulletin published by the Department and available on website at www.Travel.State.Gov explains the allocation of visa numbers by dates, the laws and the per country and per category limits.

As stated previously, DOS goal is to come as close as possible to the annual limit without exceeding it. The Immigrant Visa Control and Reporting Division maintains a database containing workload statistics for immigrant visas issued at Foreign Service posts worldwide, and adjustment of status cases at USCIS. DOS authorize numbers for USCIS applications as USCIS request them, usually on a daily basis.

DOS in past has received several inquiries about the allocation of Employment-Based Second Preference visa numbers to India and China. DOS want to make clear that India is not receiving all of the extra numbers. They are also available to China where the applicant’s priority date was earlier than the posted cut-off date and are also available to applicants in any other country with a current priority date and for which the interview is completed and all required clearances received. These numbers are being made available when current indications are that demand from “all other countries” will not be sufficient to utilize all available Employment First and Second preference numbers. Such numbers will be made available, as visa numbers are always provided, in priority date order (the date petition to accord immigrant status was filed with USCIS). India does have a larger number of older petitions pending and therefore is likely to receive a larger number of these visa numbers than China. The Department’s policy of making the extra numbers available in priority date order is mandated by Section 203(e) of the INA. This allocation of numbers based on priority date means that China and India Second preference applicants will be subject to exactly the same cut-off date.

VISA NUMBER Availability and Cut-Off Date Determination for Visa Bulletin

The Department of State is responsible for administering the provisions of the Immigration and Nationality Act (INA) relating to the numerical limitations on immigrant visa issuances. It is a process that has evolved through the years and will continue to do so as DOS use the best technologies to improve communication with posts, applicants and colleagues at USCIS.

At the beginning of each month, the Visa Office (VO) receives a report from each consular post listing totals of documentarily qualified immigrant visa applicants in categories subject to numerical limitation. Cases are grouped in three different categories: 1) foreign state chargeability, 2) preference and 3) priority date.

Foreign state chargeability for visa purposes refers to the fact that an immigrant is chargeable to the numerical limitation for the foreign state or dependent area in which the immigrant's place of birth is located. Exceptions are provided for a child (unmarried and under 21 years of age) or spouse accompanying or following to join a principal to prevent the separation of family members or in a foreign state of which neither parent was a native or resident. Alternate chargeability is desirable when the visa cut-off date for the foreign state of a parent or spouse is more advantageous than that of the applicant's foreign state.

Preference is the visa category that can be assigned as established by the Immigration and Nationality Act based on relationships to U.S. citizens or legal permanent residents. Family based immigration falls under two basic categories: unlimited and limited. Preferences established by law for the limited category are:

Family First Preference (F1): Unmarried sons and daughters of U.S. citizens and their minor children, if any.

Family Second Preference (F2): Spouses, minor children and unmarried sons and daughters of lawful permanent residents.

Family Third Preference (F3): Married sons and daughters of U.S. citizens and their spouses and minor children.

Family Fourth Preference (F4): Brothers and sisters of United States citizens and their spouses and minor children provided the U.S. citizen is at least 21 years of age.

Employment-based immigration also includes preferences; all of them are subject to a limitation.

The Priority Date is normally the date on which the petition to accord the applicant immigrant status was filed, normally with U.S. Citizenship and immigration Service.

Visa Bulletin Cut-Off Date Determination
The Department of State Visa Office subdivides the annual preference and foreign state limitations specified by the INA into monthly allotments. The totals of documentarily qualified applicants which have been reported to VO are compared each month with the numbers available for the next regular allotment. The determination of how many numbers are available requires consideration of several of variables, including: past number use; estimates of future number use and return rates; and estimates of Citizenship and Immigration Service demand based on cut-off date movements. Once this is done, the cut-off dates are established and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first.

If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current". For example: If the monthly allocation target is 10,000 and DOS only have 5,000 applicants the category can be "Current”.

Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 10,000 and DOS have 25,000 applicants, then the goal would be to establish a cut-off date so that only 10,000 numbers would be allocated. In this case, the cut-off in the ideal world would be the priority date of the 10,001st applicant.

Only persons with a priority date earlier than a cut-off date are entitled to allotment of a visa number. Possible cut-off dates are the 1st, 8th, 15th, and 22nd of any given month, since the Visa Office groups demand for numbers under these dates. (Priority dates of the first through seventh of a month are grouped under the 1st, the eighth through the fourteenth under the 8th, etc.)

The Visa Office attempts to establish the cut-off dates for the following month on or about the 8th of each month. The dates are immediately transmitted to consular posts abroad and the U.S. Citizenship and Immigration Services (USCIS), and also published in the Visa Bulletin and online at the Bureau of Consular Affairs Web site (www.travel.state.gov).

Visa allotments for use during that month are transmitted to consular posts. USCIS requests visa allotments for adjustment of status cases only when all other case processing has been completed.

CLARIFICATION OF SOME FREQUENTLY MISUNDERSTOOD POINTS

Applicants entitled to immigrant status become “documentarily qualified” to apply for an immigrant visa (meaning they have all their documents necessary for a visa interview and, if approved, for issuance) at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.

If an applicant is reported documentarily qualified but allocation of a visa number is not possible because of a visa availability cut-off date, the demand is recorded at the Visa Office and an allocation is made as soon as the applicable cut-off date advances beyond the applicant's priority date. There is no need for such applicant to be reported a second time.

Visa numbers are always allotted for all documentarily qualified applicants with a priority date before the relevant cut-off date, as long as the case had been reported to the Visa Office in time to be included in the monthly calculation of visa availability. Failure of visa number receipt by the overseas processing office could mean that the request was not dispatched in time to reach the Visa Office for the monthly allocation cycle, or that information on the request was incomplete or inaccurate (e.g., incorrect priority date).

Allocations to Foreign Service posts outside the regular monthly cycle are possible in emergency or exceptional cases, but only at the request of the office processing the case. Note that should retrogression of a cut-off date be announced, the Visa Office can honor extraordinary requests for additional numbers only if the applicant's priority date is earlier than the retrogressed cut-off date.

Not all numbers allocated are actually used for visa issuance; some are returned to VO and are reincorporated into the pool of numbers available for later allocation during the fiscal year. The rate of return of unused numbers may fluctuate from month to month, just as demand may fluctuate. Lower returns mean fewer numbers available for subsequent reallocation.

Fluctuations can cause cut-off date movement to slow, stop, or even retrogress. Retrogression is particularly possible near the end of the fiscal year as visa issuance approaches the annual limitations.

Per-country limit: The annual per-country limitation of 7% is a cap, which Visa issuances to any single country may not exceed. Applicants compete for visas primarily on a worldwide basis. The country limitation serves to avoid monopolization of virtually all the annual limitation by applicants from only a few countries. This limitation is not a quota to which any particular country is entitled, however. A portion of the numbers provided to the Family Second preference category is exempt from this per-country cap.

The American Competitiveness in the Twenty-First Century Act (AC21) removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.

Applicability of Section 202(e): When visa demand by documentarily qualified applicants from a particular country exceeds the amount of numbers available under the annual numerical limitation, that country is considered to be oversubscribed. Oversubscription may require the establishment of a cut-off date which is earlier than that which applies to a particular visa category on a worldwide basis. The prorating of numbers for an oversubscribed country follows the same percentages specified for the division of the worldwide annual limitation among the preferences. (Note that visa availability cut-off dates for oversubscribed areas may not be later than worldwide cut-off dates, if any, for the respective preferences.)