Updated: More Predictions From Charles Oppenheim On Visa Bulletin Movements

Note: This post was updated with LOTS of new information on March 11, 2013.

Charles Oppenheim in the latest meeting with various attorneys at AILA on January 31, 2013 gave his prediction on the visa numbers and dates for the next few visa bulletins. If you don't know, Charles Oppenheim creates and publishes the monthly visa bulletin. He works at Department of State (DOS) and is the Chief of "Visa Control and Reporting Division".

Here are his thoughts on future movements in the upcoming visa bulletin:

EB1:  EB1 India and EB1 China have already used up their number for fiscal year 2013. However due to spillovers rules, EB1ROW numbers can be transferred to EB1 India and China. This means there would not be a need for a cutoff date for EB1 India and China.

EB2 ROW: This category is expected to remain current throughout the fiscal year. However, depending on demand they may introduce a cutoff date towards the end of the fiscal year, not unlike what happened during the summer of 2012.

EB2 India: The porting from EB3 India to EB2 India is still very high. In December 2012 alone, EB2 India had 125 cases  approved from year 2003 and earlier. Since the current EB2 India date is 2004, EB2 India can easily reach the annual limit just from people porting from EB3 India. The good news in that there will be (usual) spillovers of number from EB1 category to EB2 category. Current numbers indicate that there are approximately 42,000 India EB2 cases in line with priority dates prior to May 2010. EB-2 India demand continues to be very high, and it is possible that the cutoff date may be retrogressed during this fiscal year. It is still unknown how many EB5 and EB1 numbers will fall down to EB2.

EB3 India:  For EB3 India, there are 44,000 cases with priority dates before August 2007, which have already been preadjudicated, though final approval/visa issuance has not taken place due to priority date retrogression over the past several years. Since many of these cases are upgrading to EB-2 India, the EB3 India numbers are constantly changing.

Also there are 12,000 India EB3 cases with priority dates before January 2004. Mr. Oppenheim’s office has very good information regarding how many India EB3 cases are lined up for the older dates, due to the 2007 retrogression. For example, there are 63 cases with a November 18, 2002 priority date. Accounting for demand in India EB3 has been pretty precise.

EB3ROW: EB3 ROW had 1,100 upgrades in December 2012 alone for cases which had priority dates of 2011 or earlier. In 2007 for example, there were only 72 upgrades for the year. EB3 ROW has 42,000 pre-adjudicated cases with priority dates before March 2007.

EB5: The demand for EB5 China has leveled off and there would not be any need to establish a cutoff date for EB5 China, so long as usage remains at the current levels. EB5ROW numbers can be transferred to EB5 China if demand is higher. Worldwide usage of EB5 is up 75% compared to last year. He does not know how the relocation of EB5 adjudication from the California Service Center to USCIS Headquarters will impact the usage

New Laws/Immigration Reform: New bills passing through the Congress are continuously under review by his office so that his office is ready to respond when/if a bill becomes the law.

Also 45% of the visa numbers in the queue are for principal applicants and 55% are for dependents for 2012. Years ago, the usage by dependents was much smaller. This means that more than half of immigrant visa numbers are being used by derivative family members. One can imagine the effect on the backlog if new legislation is passed that exempts family members from the immigrant visa count.

USCIS does not appear to be working to develop any processes or procedures to better capture the number upgrade cases, and so there is no better information expected from that agency to assist Mr. Oppenheim’s office in better managing these numbers.

Charles Oppenheim was asked how unused visa numbers are put back into the system to be reused in a fiscal year: Adjustment of Status cases are given numbers for cases that are current, which are retuned by the NSC or the TSC if the case cannot/will not be approved. Cases at posts overseas are given a block of numbers every month, and if the posts cannot approve the case, are sent back to Mr. Oppenheim’s office.

A little known fact is that unused FB cases can be used for EB cases, but due to heavy FB usage, this usually does not occur. However, for the same country, Mr. Oppenheim’s office can move low usages of FB cases into EB cases and vice versa. However, both the EB and FB total usage for any one country is still subject to the per country limit.

Family-based numbers are moving faster this year than in years past (in part to ensure unused FB numbers are not lost), so the movement in the FB cases are projected to move slowly in the March Visa Bulletin.

In addition, he gave his prediction for next few visa bulletin and broke it down by countries (for both EB and  FB categories). Please click here to see the DOS prediction for April 2013 to June 2013 visa bulletin.

As reported previously, another problem with trying to predict the demand is that USCIS is not providing real time data on EB-3 to EB-2 “upgrades”, and the Visa Office is also seeing a significant number of EB-2 to EB-1 upgrades. Upgrades continue to be a big wildcard, as no one knows how many are being used per month. Mr. Oppenheim confirmed his previous comments that USCIS cannot tell him how many upgrades are filed.

He would appreciate a process where USCIS notifies his office when the I-140 for the EB-2 “upgrade” is filed, so he can understand what is in the pipeline. Since the retrogression last year, the Visa Office has better data on the cases pending than they did previously because cases filed with a pending adjustment of status application are pre-adjudicated, which gives his office more detail on the person’s priority date history. Retrogression is still a problem, but understanding the data is a small benefit to it.

He also confirmed that both cases for a person remain open (so it looks like two numbers are being used) if a person is upgrading from EB-3 to EB-2, and only when the green card is approved does the duplicate file number go away. At that time, Mr. Oppenheim’s office is told by USCIS to cancel a pending EB-3 case.

Continue to Part 2: http://blog.mygcvisa.com/2013/02/updated-more-predictions-from-charles.html