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Immigrant Visa Priority Dates and Availability Predictions

01:03 06 August in News Updates
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U.S. Department of State Visa Office Update on Priority Dates and Demand

This portion of the update is courtesy of the American Immigration Lawyers Association (AILA), and AILA members Michael Nowlan and Roberta Freeman.   AILA InfoNet Doc. No. 12012349 (posted April 28, 2014).  Highlighting in red added by LAC.

On Monday April 21, 2014 Mr. Charlie Oppenheim of the Department of State’s Visa Office (VO) spoke to AILA members Roberta Freedman and Michael Nowlan regarding what his office is currently seeing with regard to visa demand and what might be expected in terms of Visa Bulletin movement at this time. Below are notes from that call. It is important for AILA members to remember that these notes are based on Mr. Oppenheim’s impressions at this time, and are subject to change based on usage and/or new developments. All projections, including those that are noted in the Visa Bulletin are subject to change depending on demand that is reported or observed by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) in “real time.”

General Notes: The National Visa Center (NVC) is now sending out requests for payments 8 to 12 months in advance of the priority date becoming “current.” [LAC:  This relates to consular processing cases, and does not apply to I-485 adjustment of status filings.] The NVC had previously been contacting applicants 12 to 18 months in advance. Applicants processing abroad appear to be waiting until their priority date is current, or almost current, to pay the fees. This could be to avoid the long delay where the visa fees are held without a visa being issued. Once payment is received, it helps the VO confirm the actual demand overseas.

The VO expects to be able to make predictions regarding worldwide (WW) FB-2A, WW EB-3 and China EB-3 in May (see below) which could be realized in the July Visa Bulletin, or perhaps sooner.

Family Based Second Preference 2A Worldwide (FB-2A):

  • Demand is starting to catch up. FB-2A for Mexico will retrogress soon and more than the WW reported dates. It appears that the WW FB-2A category will also retrogress, perhaps back to 2012 in the June or July Visa Bulletin.
  • Why the retrogression? USCIS seems to be processing more approvals. It is possible that some FB-2A beneficiaries were holding off on filing for green cards in anticipation of comprehensive immigration reform, and demand is now “catching up” to the posted dates.
  • 85% to 95% of these cases are processed at U.S. consulates.
  • The VO was not able to confirm whether I-601 processing by USCIS had a positive or negative impact on the demand for visa numbers. The NVC may have that data.

Family Based Second Preference 2B Worldwide (FB-2B):

  • Demand is down right now, so movement is expected to continue to advance.
  • It is likely the same scenario will occur in the next fiscal year that occurred with WW FB-2A. Specifically, that demand will increase as the category is advanced and then there will be high demand, which will reduce forward movement.

Employment Based 5th Preference China (EB-5):

  • China EB5 could retrogress later this year, possibly August or September.
  • Retrogression for China EB-5 in the 2015 fiscal year seems almost inevitable, as there are over 7,000 I-526 applications pending and 80% are from China.
  • More on this topic is expected to be known in the next few weeks, and will be shared at an upcoming panel in May with AILA Past-President Bernie Wolfsdorf.

Employment Based 1st Preference (EB-1):

  • It is still a little early in the fiscal year to know how many unused cases will drop down into EB-2. EB-1 usage is heavier this year than last year.

Employment Based 2nd Preference India (EB-2):

  • It is possible in August, but more likely in September, that India EB-2 will open at 1/1/2008 or perhaps later in 2008, in order to utilize the rest of the EB-2 visa numbers that were unused by the WW categories.
  • How many numbers will be utilized depends on EB-1 and EB-2 usage in the WW categories for the rest of the fiscal year (it could be 5,000 or more). This would be less than what was available in fiscal year 2013.
  • No expected changes for WW EB-2.

Employment Based 3rd Preference Worldwide (EB-3):

  • The VO has limited knowledge as to the number of eligible applicants, and USCIS has encouraged DOS to “move the category forward” over the last 5 months. Demand appears to be increasing, thus, it is unlikely in the short run that the category will move forward. In fact, if current demand continues, something may have to be done as early as May 2014 to slow the demand in this category.
  • The last quarter of the fiscal year for 2014 [LAC:  this is June through September of 2014] does not look good, and no movement, or retrogression, is possible.

PRACTICE POINTER: Do not delay on filing I-485 adjustment of status cases. WW EB-3 could retrogress as early as May or June so encourage your clients to file their cases now if their priority dates are current. The category may not be available as early as May.
Employment Based 3rd Preference China (EB-3):

  • Many Chinese nationals who were waiting in the EB-2 category have been filing to “downgrade” from EB-2 to EB-3, and the result of these requests will be reflected in the coming months.
  • High demand is expected to continue in this category and a correction may be reflected as early as the May or June Visa Bulletin, depending on demand.
  • If China FB-2A retrogresses because of the WW FB-2A retrogression discussed above, the unused FB demand could be used by China EB-3.

PRACTICE POINTER: Do not delay on filing I-485 adjustment of status cases. China EB-3 could retrogress as early as May or June, so encourage your clients to file their cases now if their priority dates are current. The category may not be available as early as May.

What is a Priority Date?

Every federal fiscal year there are a limited number of immigrant visas available in each immigration category, for each nationality.  When a particular category is over-subscribed, a backlog develops.  Individuals who are subject to the quota backlog cannot proceed to the last step of the green card process until there is a visa available for them.

In the EB-1, EB-2 and EB-3 preference categories (employment-based first, second and third preference, respectively), this backlog has primarily impacted those born in India and China.  However, for the past few years it has also applied to individuals of all nationalities in the EB-3 category.

Immigrant visas are “charged” to the applicant’s country of birth.  Please note that country of citizenship is not relevant.

A “priority date” establishes a person’s place in line to receive an immigrant visa.  The priority date is established either by the filing of a labor certification, or by the filing of an immigrant visa petition for categories which do not require the labor certification.  Priority dates do not advance or retrogress in a consistent manner; from month to month, the priority dates and nationalities affected can change.  Individuals with priority dates earlier than the posted date can proceed with the last step of the green card process.

The State Department posts priority dates monthly in the Visa Bulletin:  http://travel.state.gov/visa/bulletin/bulletin_1360.html.   That is, each month it establishes a cut-off date in each category, for each nationality.  “C” means visas are currently and immediately available regardless of one’s priority date; “U” means visas are unavailable regardless of one’s priority date.  The dates indicate there are visas available in that category for individuals with priority dates earlier than the posted date.

Priority dates/immigrant visa availability as of May 1, 2014

Employment-Based All Chargeability Areas Except Those Listed China – mainland born INDIA MEXICO PHILLIPINES
1st C C C C C
2nd C 15APR09 15NOV04 C C
3rd 01OCT12 01OCT12 01OCT03 01OCT12 01NOV07

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