Labor Immigration Law

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.

Many of our readers follow closely our (and others’) reports of the monthly Visa Bulletin which provides cutoff dates for those immigrant visa (green card) applicants who are current and have immigrant visa numbers available (i.e. their actual permanent resident “green” card is assigned an available number and can be issued).   The past few Visa Bulletins have been disappointing for most, especially for EB-2 and EB-3 India applicants.   With such little movement, it is difficult to imagine an alternative to the long wait, in particular for those from India, but also from Mexico, China, and the Philippines.  For a few, the little known rule of cross-chargeability could provide relief by moving them from an over-taxed and long delayed country of chargeability to another with a substantially shorter wait time.

How Does Cross-Chargeability Work?

Cross-chargeability allows a family of applicants to move their country of immigrant visa chargeability from one category to another if a member of the family was born elsewhere.  Most often this applies to a spouse (not the main applicant) who was either born in a different country, or their place of birth was a different country at the time of birth, or they were born on the high seas (rare).  Here are a few examples of how the rules apply to real-world situations:

• A married foreign worker born in India has a pending Employment-Based Third Category (“EB-3”) case with a October 2006 priority date, and it could be a few years before the current EB-3 cutoff time moves beyond November 15, 2002 (from the February 2013 Visa Bulletin).  However, because the worker’s spouse was actually born in Canada, in this example, cross-chargeability would allow the EB-3 October 2006 priority date to be processed under the all-other-nationalities (Rest of the World, or ROW) EB-3 category, which is processing priority dates of February 1, 2007 and earlier.  As a result, a long delay in waiting for the EB-3 India category to reach the October 2006 priority date is bypassed and the family can obtain their green cards within weeks or few months (depending on how the application is filed).
• Another married foreign worker born in China has an EB-2 immigrant visa waiting with a July 2009 priority date.  Currently, EB-2 China cases with a priority date of January 15, 2008 and earlier are being issued permanent resident status.  However, the worker’s spouse was born in Hong Kong before 1997 when it became part of China again.  Since Hong Kong was not part of China at the time of birth, cross-chargeability allows the worker and spouse to be processed under the all-other-nationalities (ROW) EB-2 category.  As this category is current, there would be no wait time for a current priority date.

It is important to note that parents cannot take advantage of cross-chargeability and use the country of birth of a child.

How Can We Help?

Do you have a family member whose country of birth differs from the country of birth of the main applicant/worker? We would be happy to consult with you and analyze your options for filing or other alternatives, if they apply to your situation.   The possibility of significant improvement in the waiting/processing of one’s green card application makes cross-chargeability a desirable option, if it is applicable.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.  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.

Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim.  Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  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.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 China and India have huge backlog and will move very slowly over the next few months.   EB-2 India will move very slowly, if at all.    EB-3 China and, specifically, India, will also move very slowly forward.  EB-5 is becoming very popular category and a cutoff date later in the year is possible.

General Visa Number Trends

Mr. Oppenheim reiterated the fact that in the employment-based context, each green card application case is “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for and applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in additiion to EB-2 visa numbers are expected to remain oversubscribed and to move slowly forward, more so for India than China.

At this time last year, Mr. Oppenheim had indicated that he expects to advance EB-2 India and China significantly over the next few months.  His predictions were correct – as we witnessed, EB-2 India and China moved forward very rapidly in late 2011 and early 2012.   Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news, especially for EB-2 India.   Because of the significant number of EB-2 India filings early this year and because of the very high number of EB-3 to EB-2 porting cases, Mr. Oppenheim indicated that EB-2 India, specifically, will move very slowly, if at all, over the next months.

Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years.   A cutoff date for EB-5 is possible.   This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India and China forward movement.

Mr. Oppenheim did not elaborate too much on family-based cases — so we are unable to provide his thoughts on this subject.  However, the general expectation is that there family-based cases should continue to move with the same steady pace they have been moving over the past months — in other words, without the kind of wild swings seen in the employment-based categories such as EB-2 India and China.

On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December, and January visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).

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 China and EB-2 India.  Unlike last year, where these two categories were anticipated to move forward dramatically, unfortunately, EB-2 for China and India are expected to move very slowly.   Specifically, Mr. Oppenheim indicated that he expects EB-2 China to move forward by approximately 2 weeks in every month’s visa bulletin with a possible target of cutoff date somewhere in the second half of 2008 by the end of the fiscal year (September 30, 2013).

For EB-2 India Mr. Oppenheim indicated that very little or no movement is expected over the next months.  The reason is simply the huge demand of EB-2 cases and the very small number of visa numbers available in this category.    The high demand appears to be caused by the high number of I-485 cases filed by EB-2 applicants (and their family members) earlier this year and also the very high number of EB-3 India applicants who are now porting into EB-2 India.   Mr. Oppenheim suggested almost no movement in EB-2 India with an absolutely best case scenario of having a cutoff date of late 2007 or early 2008 by the end of the fiscal year.

EB-3 Rest of World (ROW).  This category is expected to move gradually forward for the next few visa bulletins — anticipated forward movement of 3 to 4 weeks per month.

EB-3 China.  This category is expected to move notably forward – by 4-6 weeks per month for the next few months.

EB-3 India.  Unfortunately, this category continues to be oversubscribed and forward movement will continue to be slow.    This category is expected to remain unchanged or to move very slowly forward (by a 1-2 weeks or so each month).   This is mainly caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   However, as many EB-3 India applicants are porting into EB-2, there is some possibility that EB-3 may move a little bit faster because some EB-3 candidates will simply drop out of the line after receiving a green card under a newly ported EB-2 category.

EB-5.   Mr. Oppenheim suggested that the demand for EB-5 is very strong — a 120% increase compared to last year, with 80% of the allocated numbers going to Chinese nationals.   Mr. Oppenheim suggested that a cutoff date (the first for EB-5) is possible (even highly likely) towards later in the fiscal year.   As an example, Mr. Oppenheim indicated that 20% of the annual numbers for EB-5 have been used in the first two months of the fiscal year – October and November.

On Predicting the Visa Bulletin Cutoff Dates

Mr. Oppenheim shared his thoughts on 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.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Our EB-2 India and China 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.