Visa Numbers Update from State Department Visa Office

On Thursday, August 30, 2012, Roberta Freedman, American Immigration Lawyers Association (AILA) Students & Scholars
Committee member, and Mike Nowlan, Chair of the AILA Business Committee,
discussed the Visa Bulletin, visa demand in the employment preference
categories, and predictions for FY2012 and FY2013 with Charlie Oppenheim of the
Department of State’s Visa Office. These are only discussions of what could
happen and are not assurances or guarantees by the Visa Office, as changes in
visa usage result in changes in the Visa Bulletin.

Notes from that discussion are:

  • Employment Based (EB)-1 visa usage is extremely high. August 2012 was at a
    near record high. The Visa Office does not know why. Is USCIS clearing out
    backlogs because of the new Deferred Action for Childhood Arrivals program, or
    is this pent up demand from 2011, or more “upgrades”? The answer is unknown. The
    EB-1 visa category could close in September if usage remains this high (close
    the 40,000). It would then go current in October. In July 2012, EB-1 usage was
    almost 3,000, of which roughly 1,200 had 2011 or earlier priority dates, and the
    rest had 2012 priority dates. The 13,000 unused EB-1 numbers that were expected
    in FY2012, and which would then “drop down” to EB-2, did not happen.
  • EB-2 India priority date will probably go to 2006 when the Visa Bulletin is
    published next month (not 2007 as previously predicted). This is due in part to
    the retrogression in 2012, as well as the high level of EB-1 usage. India is
    expected to stay in 2006 for some time. It could fall back to 2005, but that
    does not appear likely right now. Slow movement in this category in FY2013 is
    expected.
  • EB-2 China priority date will be further ahead than India, but that
    assessment has not been completed yet.
  • EB-2 worldwide may go current in October, or it may go to early 2012 and
    then current in the November Visa Bulletin – a 2 step process. Why the delay?
    Employment-based numbers move in a fairly predictable usage pattern (unlike
    family-based cases). As a result, the Visa Office prefers to have a steady usage
    of EB cases per month. There are expected to be many EB-2 worldwide cases
    pending or filed in October, and slowing the usage could help predict usage for
    the rest of the year. A “correction” in EB-2 worldwide towards the latter part
    of FY2013 could happen (in other words, potentially visa retrogression for EB-2
    worldwide and no longer current).
  • EB-3 worldwide should remain as posted for the rest of September. No
    prediction could be given as to where it will go in the October Visa Bulletin.
    Steady progress is expected in FY2013, unless heavy EB-1 and EB-2 usage in
    FY2013, which would slow the speed of EB-3 worldwide.

 

Other comments:

As reported previously, another problem with trying to predict the demand is
that USCIS is not providing real time data on EB-3 to EB-2 “upgrades”, and the
Visa Office is also seeing a significant number of EB-2 to EB-1 “upgrades.”
“Upgrades” continue to be a big “wildcard,” as no one knows how many are being
used per month. Mr. Oppenheim confirmed his previous comments that USCIS cannot
tell him how many upgrades are filed. He would appreciate a process where USCIS
notifies his office when the I-140 for the EB-2 “upgrade” is filed, so he can
understand what is in the pipeline. Since the retrogression earlier this year,
the Visa Office has better data on the cases pending than they did previously
because cases filed with a pending adjustment of status application are
pre-adjudicated, which gives his office more detail on the person’s priority
date history. Retrogression is still a problem, but understanding the data is a
small benefit to it.

Upgrades were initially limited to India and China. Worldwide upgrades are
now occurring, with 2,900 upgrades for EB-2 worldwide in February 2012. Over 500
of those had a priority date of 2009 or earlier. The Visa Office knows it has
3,500 EB-2 worldwide cases pre-adjudicated and ready to be approved on October
1st and expects more new filings in October.

Family Based (FB) 2A cases:
Usage is dropping. Outreach programs seem to increase usage. Immigrant visa
waiver delays, primarily in Mexico, also slow usage. FB-2A usage is slower than
it should be so the priority dates are expected to move forward at the same pace
as FY2012. However, if demand continues to be low, this group may move forward
more significantly in the spring of 2013.

 


 

On Tuesday, June 19, 2012, Roberta Freedman, AILA Students & Scholars
Committee member, discussed the Visa Bulletin,
visa demand in the employment preference categories, and predictions for FY2012
and beyond with Charlie Oppenheim of the Visa Office. Here are notes from that
discussion:

2012 and 2013 News
  • In October 2012 (beginning of the 2013 fiscal year), the EB-2 cut-off dates
    for China-Mainland born and India, which are currently “unavailable,” will move
    to August or September 2007 (China may be slightly better). It is unlikely that
    the cut-off dates will move forward at all for the first two quarters of FY2013.
    If they do, it will only be if the Visa Office is convinced that there is
    insufficient demand for the rest of the year. Mr. Oppenheim’s office already has
    17,000 EB-2 cases for natives of India, China, and worldwide with priority dates
    after January 1, 2009, pre-adjudicated. There will be a lot of cases queued up
    for adjudication in October 2012, and it will take some time to get through
    them.
  • EB-2 worldwide will be current in October 2012.
  • If USCIS approves many pending cases during the month of June, the worldwide
    EB-2 category may retrogress or become unavailable for the rest of the year.
  • Why did the priority dates move ahead so far and then retrogress so
    drastically? USCIS encouraged Mr. Oppenheim’s office to move the categories
    forward so much in January, February, and March of 2012. USCIS reported that
    they had a lot of approved petitions but they were not receiving enough I-485s.
    USCIS wanted the cut-off dates moved even more in March 2012, but DOS resisted,
    since there already appeared to be heavy demand. In February, the demand had
    already increased 50%. In addition, USCIS said that they believed that
    adjudication of EB-1 cases would be at the same rate as last fiscal year, and
    this was not the case. It could be due to the fact that many EB-1 cases had very
    long adjudication times with USCIS. In addition, EB-5 usage has been higher this
    year. Unused EB-5 cases fall into EB-1, and unused EB-1 cases fall into EB-2.
  • Applicants from China and India who filed will be waiting years for
    adjudication of their I-485s.
  • USCIS also advised a 4-6 month timeline in the processing of I-485s, and
    then they processed a lot of cases in 3 months, which increased the demand as
    well for visa numbers this fiscal year.
  • The group of cases that were filed in July and August of 2007, when all
    employment-based categories were made “current,” were all completed by November
    2011, and at that point, Mr. Oppenheim’s office had to depend on USCIS estimates
    for adjudication of cases. Mr. Oppenheim’s office had no pre-adjudicated cases
    that gave him a point of reference to determine what was left or pending.
  • Mr. Oppenheim’s office has been very clear that they do not like
    retrogression.
Going forward:

Another problem with trying to predict the demand is that no one is keeping
statistics on EB-3-EB-2 “upgrades.” Upgrades continue to be a big “wildcard,” as
no one knows how many are being used per year and no one is tracking it. Mr.
Oppenheim confirmed his previous comments that both cases for a person remain
open (so it looks like two numbers are being used) if a person is upgrading from
EB-3 to EB-2, and only when the green card is approved does the duplicate file
number go away. At that time, Mr. Oppenheim’s office is told by USCIS to cancel
a pending EB-3 case.

Mr. Oppenheim’s office believes that there are 10,000 to 15,000 numbers used
for upgrades every fiscal year. In March 2012, alone, 3,200 numbers were used to
approve China and India adjustments that were EB-3-EB-2 upgrades. The actual
break down was 2,800 from India and 500 from China. All of these cases had
priority dates before 2007, so clearly, they were upgrades. For example, 363 of
the 2,800 EB-2 cases from India that were approved in March 2012, had a 2005
priority date. In March 2012, alone, over 1,000 numbers were used for
applications from the worldwide quota that had priority dates before 2010, so
these were likely upgrades as well.

USCIS previously insisted that the number of upgrade cases was
insignificant.

Mr. Oppenheim’s office tries to use 13,500 visas per quarter for all EB
cases. This office already has more than 17,000 in line for FY2013.


 

On Thursday, January 19, 2012, Business committee chair Mike Nowlan and
Students & Scholars committee member, Roberta Freedman, discussed the Visa
Bulletin, visa demand in the employment preference categories, and predictions
for FY2012 with Charlie Oppenheim of the Visa Office. Notes from that discussion
are:

  • EB green card usage has been very slow in FY2012, so DOS is advancing the
    dates to see how many cases are out there. Mr. Oppenheim is relying on USCIS and
    their estimate. USCIS thought more would come in, but 50% their estimate have
    actually filed an AOS. This movement is due in large part to the clearing out of
    the EB-2 2007 AOS cases. Mr. Oppenheim reminds AILA that DOS cannot “see” the
    I-140 cases that are approved and for which adjustment of status had been
    requested prior to September 2010, though he can “see” cases for which consular
    processing is requested.
  • Mr. Oppenheim could not speculate why usage is slow/low. Economy? Foreign
    nationals lost jobs?
  • Low usage of EB-1 numbers is assumed again this year. A fall-down of 12,000
    additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim’s projections
    for 2012, although he thinks EB-1 number availability may be down by
    approximately 1,000 as compared to last year, due to heavier EB-5 usage since
    unused EB-5 numbers “spill up” to EB-1 and then down to EB-2.
  • Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers. We
    cited the impact of Kazarian on USCIS filings and demand for EB-1-1 numbers, and
    the fact that it is difficult for an owner-beneficiary to obtain approval of
    EB-1-3 petitions.
  • About 34% of the total number of permanent visas have been used this year,
    and 45% should be used by end of February.
  • Adjustment of status through USCIS accounts for 85% to 90% of all EB green
    card cases.
  • The impact on number usage of upgrades (EB-3 to EB-2) is still unknown.
    Upgrades were the reason the priority dates advanced so slowly in in the
    beginning of FY2011. For upgrades, the EB-3 case does not get cleared out of the
    system until the EB-2 for the same person is approved.
  • Mr. Oppenheim also wonders whether demand is weak for visas for dependent
    family members, and so fewer green cards are needed.
  • Mr. Oppenheim meets monthly with USCIS and the Ombudsman’s office to review
    the receipt of cases. There was a recent meeting to discuss December numbers.
    There will be another review before he decides what he will do in March.

Prediction:

  • Employment-based priority dates will advance again with the March Visa
    Bulletin, likely by at least a few months. An advance of six months is possible,
    although an advance of one year is not likely. He will know as this month moves
    on. With normal USCIS adjustment of status processing times of four-to-six
    months, March is the last time for Mr. Oppenheim to get the AOS cases filed and
    possibly approved in FY2012. He will then probably hold the priority date over
    the summer, and then retrogress or advance it if needed. Mr. Oppenheim does not
    have enough data to predict demand and priority date changes in the last quarter
    of FY2012.
  • • USCIS is agreeing to the priority date advances, though significant
    advances are bit of a gamble for USCIS, because if they get inundated with
    adjustment filings, and subsequently there is priority date retrogression, USCIS
    will have to process EAD and advance parole extensions without additional fees.
    As we all know, retrogression causes chaos.

AILA InfoNet Doc. No. 12012349 (posted Sep. 5, 2012)”