DOS's Charlie Oppenheim Weighs in on August Visa Bulletin

Every month, the Chief of the Visa Control and Reporting Division of the Department of State, Charlie Oppenheim, talks with the American Immigration Lawyer's Association about the visa bulletin. AILA publishes the interview monthly (AILA Doc. No. 14071401). This month's interview was conducted on July 14, 2017, after the release of the August 2017 Visa Bulletin. Oppenheim discusses the bulletin by category.

Oppenheim's Take on Employment-Based Categories

EB-1 China and India. A final action date of January 1, 2012, which was imposed for EB-1 China and EB-1 India in June, remains for August and is expected to hold through the end of this fiscal year.

EB-2 Worldwide. A final action date of April 1, 2015, will be imposed for EB-2 Worldwide in August. This date is likely to remain the same for September, but there is a possibility that it may retrogress further. However, Charlie is confident that this category will become current again at the start of the new fiscal year on October 1, 2017.

EB-2 India. Despite signaling possible advancement in EB-2 India this fiscal year, the July final action date of July 22, 2008, will remain the same in August due to heavy demand for EB-3 upgrades. If demand continues to materialize at a rapid pace, there will be no forward movement in September, and the date may retrogress. If retrogression is necessary, the final action date would return to July 22, 2008 in October.

In Fiscal Year 2018, movement in EB-2 India and other employment-based categories is expected to be similar to movement this fiscal year, including more conservative advancement during the first quarter. This will allow Charlie to better gauge demand in various categories and hopefully avoid dramatic retrogressions later in the fiscal year.

EB-2 and EB-3 China. In August, the final action date for EB-2 China will advance one month to April 22, 2013. Charlie hopes to advance this date again in September, but it will depend on how much EB-2 China demand materializes in the coming weeks. If this category does not advance in September, it will definitely advance in October when the new fiscal year's numbers become available.

As predicted, the final action date for EB-3 China, which retrogressed three years in July, will remain at January 1, 2012, in August. This date is expected to hold through September and, based on current demand, should recover in October to a final action date of October 1, 2014. Members should also expect the final action date for EB-2 China to be earlier than that of EB-3 China in October 2017, resuming the dynamic which allows for EB-3 downgrades.

EB-3 Worldwide. EB-3 Worldwide, which has a final action date of June 8, 2017 in July, will be current in August. [AILA Note: Given PERM processing times, this will not likely have an immediate impact on demand. However, if there are backlogs of EB-3 cases at DOL or USCIS that suddenly clear and generate demand, there could be an impact on this category]. EB-3 Worldwide demand will have a significant impact on the advancement of EB-3 India in the coming fiscal year, since advancement is entirely dependent on the availability of otherwise unused EB-3 numbers.

EB-3 India. The final action date for EB-3 India, which advanced five months in July, will leap forward another nine months in August to July 15, 2006. While this category should advance again in September, it will not be as pronounced as in August.

Charlie cautions that EB-3 Worldwide demand will increase next fiscal year, as the "otherwise unused numbers" that were available this fiscal year may not be as plentiful next year. Members should respond immediately to any USCIS RFEs in an effort to complete adjudication and obtain an immigrant visa number during the current fiscal year. This would enable EB-3 India to leverage the otherwise unused numbers and slowly chip away at the backlog in this category.

EB-3 Philippines. The final action date for EB-3 Philippines will advance to June 1, 2015, in August. As with EB-3 India above, members should respond quickly to USCIS RFEs to provide a better chance of I-485 adjudication before the end of this fiscal year.

EB-5 China. The final action date for EB-5 China will advance one week to June 15, 2014, in August. If that date advances in September, it will only be one week. Future movement is likely to be slow.

Oppenheim's Take on Family-Based Categories

FB-4. The July final action date of May 8, 2004, for FB-4 Worldwide will hold in August. The lack of movement is attributable to a sizeable increase in demand. If demand continues at this level, Charlie may have to impose a temporary retrogression for FB-4 Worldwide and FB-4 China. If that happens, the final action date would return to May 8, 2004, in October 2017.

Members may recall prior reports that demand in the family-based preference categories has been very low for the past few years, with beneficiaries not responding timely to Agent of Choice letters. Of the 140,000 beneficiaries who were sent Agent of Choice letters prior to April 30, 2016, only 45% responded. Of those, approximately 8.5% provided all of the required documents which allowed them to be scheduled for a visa interview. Had all of those who were notified responded and provided the required documents, 100% could have been scheduled for visa interview no later than April 30, 2017.

FB-2A. Members should expect little progress for the FB-2A final action date for September, but it will pick back up in October with the infusion of new fiscal year numbers. Slow movement is attributable to the fact that the annual visa limit is being approached.

Special Immigrants. The July final action date for EB-4 India, El Salvador, Guatemala, Honduras and Mexico will advance one month to September 15, 2015, in August. Charlie is watching this category closely and is hopeful that there may be some additional forward movement (perhaps to a date in October 2015) in September. The date that is imposed in September is likely to continue to apply through the first quarter of the new fiscal year with the exception of EB-4 India, which will become current in October with no additional movement until next summer. There is also a possibility that EB-4 Mexico will have a different final action date in September than EB-4 El Salvador, Guatemala and Honduras.