Check-in with Charlie Oppenheim October 2021

AILA's Department of State (DOS) Liaison Committee checks in each month with Charlie Oppenheim, the Chief of the Visa Control and Reporting Division at DOS for updates about Visa Bulletin progress. Oppenheim also provides an analysis of current trends and predicts future visa availability. His predictions of Final Action Date movement are based on his analysis of movement in each category over recent months and cases that are currently pending at the USCIS National Benefits Center. AILA posted the most recent check-in about the October 2021 Visa Bulletin on September 29, 2021. Oppenheim answered member questions, made general observations, and discussed his predictions for movement in family-based and employment-based preference categories.

General Observations

Visa numbers are allocated among 480,000 Family-based visas and 140,000 Employment-based visas. Visas that go unused in the Family Preference Visa category from the previous year are then added to the number of allocated EB visas. While the number of EB visas for fiscal year (FY) 2022 is expected to be the highest ever (290,000), EB-3 applications have already exceeded the current limit.

There is also an expected increase (from 9,000 to 85,000) in the employment-based immigrant visas (IVs) that are going unused this year.

NVC updated the term “Documentarily Qualified” to be “Documentarily Complete”. The terms mean the same thing but using “complete” is more accurate to indicate that all documentation has been submitted and reviewed by the NVC. “Documentarily Complete” will indicate the case is ready for interview and processing at post.

Slippage in EB-3 for China and India due to increase in USCIS adjudications

USCIS will not use all of the allocated employment-based visa numbers (262,000) that were available in FY2021. This is due in part to pandemic-related factors. Supply chains that were negatively impacted by the pandemic slowed down USCIS processing abilities, this includes USCIS lockbox delays and officers being unable to obtain files for adjudication.

Cases filed in October 2020 have been moving through the stages of adjudication processes together in bulk. This has caused bulk delays, but also bulk receipt notices, biometric notices and approval notices. To combat this USCIS has ramped up adjustment of status processing to an average of 7,00 to 8,00 a week. Before this increase in processing, Charlie estimated more than 100,000 employment-based visas would go unused. However, now he estimates the unused visas will come to about 85,000. Charlie cautioned that this high processing may cause retrogression in the future due to accelerated visa number usage.

Looming retrogression

The October 2021 Visa Bulletin signals that as early as November, the EB-3 category could experience a retrogression. Charlie will begin to review the amount of EB-3 both consular and at USCIS to decide the extent of the retrogression. He stated his goal is a one-time retrogression that will significantly cut off new application filings. The goal of this is to have forward movement later on if unused numbers become available. Charlie has taken into consideration that potential legislation could affect the annual limit. He hopes to have some clarity on this legislation soon and how it will affect his plan of retrogression.

EB-1 should remain constant and EB-2 should increase

Charlie is not concerned about reaching the annual limit for EB-1 visas, even with the high volume. He expects to see EB-1 unused numbers transfer to available EB-2 numbers for India.

Due to unused EB-1 numbers and unused EB-2 numbers for China, significant progression for EB-2 China is expected.

EB-3 Upgrades Warning

While Charlie expects the EB-2 China and EB-2 India, he is concerned about a surge in EB-3 to EB-2 upgrades. This surge would require corrective action in these categories.

EB-5 China Issues

There are currently 16,000 documentarily complete EB-5s that are waiting for visa interviews. This stall is a result of two main complications: 1. Most are in Guangzhou, which is not currently operating, and 2. Congress let laps the I5 and R5 programs and has yet to extend them. Thus, the visas cannot be issued. Charlie does not anticipate any progression in this category until summer of 2022.

Diversity Visas

KCC schedules Diversity Visa (DV) interviews based on each post’s processing capacity and requests to take the cases. It is recommended that applicants respond as quickly as possible to become documentarily complete since these cases are processed in a first-in, first-out basis. The D.C. U.S. District Court joined the State’s prioritization policy that prioritized DV lottery cases as Tier 4. The Court ordered the State to make a good faith effort to expedite the adjudication of DV prior to September 30, 2021. However, it is important to note that the Court did not order DV cases to be prioritized over other visa types. It is also undecided whether or not unused DV numbers from FY 2021 will be recaptured.

No Movement for Family-Based Visas

Immediate Relative visas remain a priority. However, retrogression may be a possibility if posts return to normal functioning and cause issuance rates to increase suddenly and rapidly. It is important to note that if issuance rates decline, dates may continue to slowly advance. There is an expected lack of movement in this category until June 2022.

For More Information:

View publicly available immigrant visa data on the State Department's website here.

Read the October 2021 Visa Bulletin here and our blog post about it here.

This blog post does not serve as legal advice and does not establish any client-attorney privilege. If you have any questions, please do not hesitate to contact our legal team directly.

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This information comes from a news release from the American Immigration Lawyers Association (AILA Doc. No. 21093004).