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Backlogs in Indian and Chinese Immigration Cases

Visa Office Update on Priority Dates and Demand (Updated 11/27/13)

During a recent conversation with Roberta Freedman, AILA Students & Scholars Committee member, Charlie Oppenheim of the Department of State’s Visa Office provided the following information and updates regarding demand in the employment-based immigrant visa categories. Please note that these notes are based on Mr. Oppenheim’s impressions at the time and are subject to change based on usage or new developments.

  • As of November 20, 2013 no additional EB-2 numbers will be allocated for EB-2 India adjustment of status applications for the rest of November. This means that no additional EB-2 India green cards can be approved with a priority date after November 2004 (the December Visa Bulletin’s cutoff date), even though the November Visa Bulletin had not yet retrogressed. The November Visa Bulletin confirmed that as soon as retrogression was announced for December, it could take effect immediately.
  • The demand for India EB-2 visa numbers has been unprecedented. In fact from the 10th to the 20th of November, the Visa Office received requests for approximately 150 EB-2 India green card numbers per day from USCIS. The demand was so great, that the unusual action of cutting off the category during the month had to be taken. A majority of these requests were from “upgrades” where the beneficiary had established a priority date in the EB-3 category, and now qualified for EB-2.
  • It is very possible that in August or September 2014, the last two months of the 2014 fiscal year, EB-2 India will advance again to around December 2008. However, that is only an educated guess at this time. No exact date is certain.
  • In the last fiscal year, close to 15,000 EB-2 visa numbers were allocated to pending EB-2 India cases in August and September 2013, for cases that were pre-adjudicated by USCIS.
  • A number of factors will affect the forward movement of the category and the availability of extra visa numbers, for India EB-2 and other categories, between now and the end of the 2014 fiscal year:
    • Usage of visa numbers in the EB-1 category that would “drop down” to EB-2;
    • The number of EB-3 to EB-2 “upgrades” from Worldwide and other countries;
    • The number of EB-2 India visa numbers used for applicants with priority dates before November 2004; and
    • The fact that the total worldwide quota is about 8,000 visa numbers lower than the previous year.
  • The Worldwide EB-3 category moved forward a year in December because there does not appear to be very many of these applications currently pending with USCIS. As demand builds over the fiscal year, and more conclusions can be drawn from the number of pending cases, the EB-3 Worldwide category may retrogress during this fiscal year.

 

On Wednesday, October 23, 2013, Mr. Charlie Oppenheim of the Department of State’s Visa Office spoke to the Washington D.C. Chapter dinner. Below are notes from that meeting. These notes are Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.

  • His office is concerned again this year that the EB-5 numbers for China are moving too fast and there could be a cut-off for China EB-5 in June 2014 or later, if usage remains at the current levels. Worldwide EB-5 usage is up as well.
  • The India EB-2 cutoff date is expected to retrogress from June 2008 (which is what it is in the November 2013 Visa Bulletin) to 2004 or 2005 in December 2013. This is due in large part to Indian nationals “upgrading” from EB-3 to EB-2. See below for more on upgrades.
  • India EB-3 will continue to move very slowly.
  • Upgrades continue to be a tough issue to manage. USCIS does not appear to be working to develop any processes or procedures to better capture upgraded employment-based cases so there is no better information expected from that agency to assist Mr. Oppenheim’s office in better managing these numbers.
  • Worldwide EB-2 is expected to remain current.
  • Worldwide EB-3 could move up to 2011 in the December Visa Bulletin.
  • Worldwide EB-1 is expected to remain current.
  • China EB-2 will continue to move slowly.
  • China EB-3 is expected to continue to be ahead of a China’s EB-2 priority date. Members are reminded that they may be able to use an expired EB-2 PERM for a new EB-3 category. As long as the first EB-2 I-140 was approved, the PERM can be used to file a second I-140 under EB-3. See this USCIS memo for more information (AILA Doc. No. 07062172)
  • EB-4 is expected to remain current.
  • Family-based 2A is expected to hold at its current date. Mexico FB-2A may need to retrogress in the future. Many FB-2A applicants are not showing up for their appointments, or their applications are being returned from the posts.
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