DOS's Charlie Oppenheim Weighs in on November 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 October 16, 2017, after the release of the November 2017 Visa Bulletin. Below, Oppenheim discusses the bulletin by category.

Oppenheim's Take on Employment-Based Categories:

EB-1 China, EB-1 India, and EB-2 and EB-3 Worldwide. As previously reported, all of these categories are expected to remain current for the foreseeable future.

EB-2 India. Consistent with Oppenheim's predictions, EB-2 India will advance by less than one month for November to October 8, 2008.

EB-3 India. The final action date for EB-3 India will hold steady at October 15, 2006, for November. Charlie is confident that this date will continue to hold in December.

EB-2 China and EB-3 China. Demand in these two categories is creeping along as expected. Charlie is interested in watching how the new USCIS interview requirement will impact demand in these categories. He is also looking at the downgrade phenomenon that has occurred for the past few years. In November, EB-2 China advances by less than one month to June 15, 2013, and EB-3 China advances by one month to February 1, 2014.

EB-3 Philippines. The final action date for EB-3 Philippines advances one and a half months to April 1, 2016, in November. This is consistent with Charlie's predictions.

EB-5 China. The final action date for EB-5 China advances approximately one week to July 1, 2014, in November. This is consistent with Charlie's projections.

EB-4. All EB-4 subcategories will remain the same in November with the exception of EB-4 Mexico, which will advance one month to April 1, 2016. Compared to the beginning of the last fiscal year, where Mexico, El Salvador, Guatemala, and Honduras were almost at their annual limits, the demand is starting out more slowly in these categories this year. Charlie expects to continue to advance EB-4 Mexico slowly, but he cautions members to not be surprised if the final action date for EB-4 Mexico rejoins that of EB-4 El Salvador, Guatemala, and Honduras later this fiscal year.

Charlie noted that in FY2017, Special Immigrant Juvenile (SIJ) applicants used over 50% of the annual limit for the EB-4 category. This is equivalent to more than 5,100 visa numbers. Of this number, El Salvador, Guatemala, and Honduras used over 1,100 visa numbers each.

Oppenheim's Take on Family-Based Categories:

Movement in the family-based categories for November is consistent with Charlie's predictions. The final action dates of most categories either remained the same or advanced modestly by about one month. FB-1 and FB-2B Philippines demand is starting to materialize. In particular, members should expect a correction to FB-1 in the December Visa Bulletin. Demand in FB-4 India is lower than expected. This might allow Charlie to advance the final action date in this category more quickly than anticipated.

Member Question #1

QUESTION #1: When does USCIS request and allocate a visa number to an individual case?
ANSWER #1: Per the agreed upon policy, USCIS will only request an immigrant visa number once all required processing is 100% complete. This includes conducting any required interview, receipt of a complete medical exam, all required clearances, etc

Member Question #2

QUESTION #2: Could you please confirm that a visa number that gets allocated to each applicant who has successfully passed the interview should be preserved for that applicant unless the applicant becomes ineligible for permanent residence?
ANSWER #2: With regard to USCIS, there are occasions in which USCIS requests a number, but before the adjustment of status application is fully processed, subsequent derogatory information comes to the officer's attention which impacts eligibility.

As another example, USCIS recently sent RFEs out on numerous EB-3 India cases. These had been pre-adjudicated in anticipation that the final action date would advance during August and September. Visa numbers were provided for those cases with the expectation that the applicants would respond to the RFEs in time to be approved before the end of the fiscal year.

Unfortunately, hundreds of individuals did not respond in a timely manner, and USCIS determined that it would be unable to complete adjudication of those cases prior to September 30, 2017. Those cases were returned to "pending demand" status, and the visa numbers for those cases became available to other cases within FY 2017. USCIS was provided with a new number for each case once the requested evidence was received and successfully processed. As a result of new visa number requests for several hundred cases, the final action date for EB-3 India is not advancing.
For consular processing cases, a visa number is allocated to a consular post for use during the month in which the visa applicant is originally scheduled for a visa interview. If the visa is not used during that month, the number is returned at the end of the month.

Member Question #3

QUESTION #3: In last month's column, Charlie talked about avoiding a "drastic" retrogression of EB-3 China. Does this mean there is no hope of forward movement?
ANSWER #3: The reason that the final action date for EB-3 China was not advanced much is because EB-3 China will likely be hit with significant downgrade demand in the coming months. This is a pattern that has repeated itself over the past few years. Charlie intentionally did not advance the EB-3 China final action date too quickly. This was in order to avoid a drastic retrogression later in the fiscal year. However, later this year, members can expect some additional forward movement in the EB-3 China category.