Visa Bulletin Predictions and Updates from Charles Oppenheim (February 2013)

In a recent conversation with the American Immigration Lawyers Association (AILA) of which our office is a member, Mr. Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State, has provided some updates and thoughts on the visa numbers and the Visa Bulletin.    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.    Mr. Oppenheim provided some recent updates and thoughts on the visa number movement over the next few months and we are happy to share with our clients and readers.

Summary of Mr. Oppenheim’s Key Points

Immigration Reform.  Immigration reform proposals that are currently circulating in Washington, DC are under review at Mr. Oppenheim’s office so that his office is ready to adjust if/when an immigration reform (whatever it ends up looking like) becomes a law, his office is ready to respond.

EB-5.  Over the past few months, Mr. Oppenheim’s office had expressed a concern that EB-5 China numbers were moving too fast; however, it appears that the numbers have leveled off which means that a cutoff date for EB-5 China, while possible, is not as likely anymore.   At the same time, worldwide EB-5 usage is up 75% when compared to the same period of last year.

EB-1 India and China.  According to Mr. Oppenheim, EB-1 India and China have used numbers for the year, but the rest of the EB-1 categories’ numbers can “fall across” and satisfy any additional EB-1 India and China demand and prevent a cutoff date.

EB-2 India.   Very little, if any, movement expected in the short term due to upgrades (porting of priority date) from EB-3 India to EB-2 India.   According to Mr. Oppenheim, in December 2012 alone, India EB-2 had 125 cases approved that were from 2003 or earlier.   Considering the current 2004 cutoff dates, EB-2 India could easily reach the annual limit — an indication that any forward movement is extremely unlikely.   Possible good news is the possibility of certain “fall down”  from EB-1 (numbers are not known at this point) to allow for more numbers to be used for EB-2 India.   “Fall down” refers to taking numbers from one category which may remain unused (EB-1) and allocating t another category which has a high demand (EB-2 India, for example).     Current numbers indicate that there are approximately 42,000 EB-2 India cases in line with priority dates prior to May 2010.

EB-3 India.   There are 44,000 cases with priority dates before August 2007, which have been pre-adjudicated, though final approval and visa issuance has not taken place due to priority date retrogressions over the past several years.   Also, some of these cases are upgrading to EB-2 so the numbers are in constant flux.

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-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, Mr. Oppenheim suggested that depending on demand he may introduce a cutoff date towards the end of the fiscal year, not unlike what happened during the summer of 2012.

EB-2 India. No forward movement expected; possible retrogression.

EB-2 China.   Three-to-six weeks per month.

EB-3 Rest of World (ROW).    Four-to-six weeks per month.

EB-3 China.  Two-to-three months per month.

EB-3 India.  Up to two weeks per month.

EB-3 Mexico.  Four-to-six weeks per month.

EB-3 Philippines.   Up to one week per month.

On Predicting the Visa Bulletin Cutoff Dates

We wish to reiterate previous comments and thoughts of Mr. Oppenheim with respect to the ability of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the slow rate of EB-2 India forward movement in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down the EB-2 India forward movement even further to be able to accommodate EB-2 India applicant with a very early (2003, 2004, etc.) priority date.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Our EB-2 India and our EB-3 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.   Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

Also, many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2.   We are happy to help analyze and assist in such EB-3 to EB-2 India or China porting cases.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.