Impact of EB3-to-EB2 "Upgrade" Filings on EB2 PD Movement
One of the difficulties faced by the DOS in making predictions of the forward movement of priority dates (PDs) is a lack of transparency in the cases commonly referred to as EB3-to-EB2 upgrades. There are many such requests, but the DOS cannot see those cases and include them in their demand figures when they are filed. The DOS is only alerted to these cases when the USCIS completes a case adjudication and requests a visa number from the DOS.
Each month, the DOS reports receiving thousands of these requests connected to upgraded cases. Since EB3 is oversubscribed, regardless of country of chargeability, many of these cases are filed by those in EB3 ROW.
The reason this is important is that excess visa numbers in EB2 ROW are made available to EB2 India and China. This is another important factor that determines movement in EB2 India and China. The increase in cases shifting from EB3 to EB2 ROW increases demand in that category. The result is fewer excess numbers that can be shifted out of EB2 ROW to EB2 India and China.
Employment-Based, Fifth Preference (EB5) Retrogression Likely for China
The next category is the employment-based, fifth preference (EB5). The categories are discussed out of sequential order, as the use of EB5 numbers directly affects the expectations for EB2 India and China, similar to EB1.
The request for EB5 numbers hit an all-time high in FY12. Much of this demand comes from Chinese investors, increasing demand for EB5 visa numbers from those chargeable to mainland China by more than 150 percent. The demand from other countries showed a 40 percent increase in FY12, continuing a trend that began in 2007 and expected to continue in FY13.
The growing demand in EB5 from those chargeable to China means that the DOS anticipates having to set an EB5 China cutoff date sometime in the second half of FY13. This is necessary to preserve enough numbers for those chargeable to other countries.
Unused EB5 numbers shift up to EB1 to avoid any waste. As explained, excess in EB1 shifts and rolls to EB2 for oversubscribed countries, like India and China. In earlier years, EB5 was underutilized. This created an excess that ultimately benefited EB2 India and China. In FY12, there was no EB5 excess. This trend is expected to continue in FY13.
Update: Feb 11, 2013: According to latest visa bulletin, there is no reason to believe that it will be necessary to establish a China Employment Fifth preference category cut-off date during FY 2013, since demand over first six months of FY-2013 has now averaged out to a manageable level.
Employment-Based, Third Preference (EB3)
The EB3 ROW category is projected to move three to four weeks per month. The same is true of EB3 Mexico. China is expected to move as much as six weeks per month in this category. India continues to be extremely backlogged. The predictions for EB3 India are only one to two weeks of advancement per month. The EB3 "other worker" category should follow the trends of the general EB3 category.
As explained, the DOS sees huge numbers of EB3 upgrade cases. Out of the thousands of such cases each month, several hundred are coming from the EB3 India category.
Movement of cutoff dates is complex, with many of the categories interconnected due to the rules for movement of excess numbers from one employment-based category to another. The DOS faces difficulties attempting to predict demand for visa numbers, due to a lack of transparency between the DOS and the USCIS, despite various improvements that have been implemented over the years.
You can also checkout CILAW's note here: http://www.cilawgroup.com/news/2012/10/24/visa-bulletin-predictions-and-updates-from-charles-oppenheim-october-24-2012/