Monday, February 25, 2013

Updated: More Predictions From Charles Oppenheim On Visa Bulletin Movements - Part 2

If you missed part 1, please click here:

Notes From Previous Meetings:

Q. Why did the priority dates move ahead so far in 2012 and then retrogress so drastically?
A. USCIS encouraged Mr. Oppenheim’s office to move the categories forward so much in January, February, and March of 2012. USCIS reported that they had a lot of approved petitions but they were not receiving enough I-485s. USCIS wanted the cut-off dates moved even more in March 2012, but DOS resisted, since there already appeared to be heavy demand. In February, the demand had already increased 50%. In addition, USCIS said that they believed that adjudication of EB-1 cases would be at the same rate as last fiscal year, and this was not the case. It could be due to the fact that many EB-1 cases had very long adjudication times with USCIS.

USCIS also advised a 4-6 month timeline in the processing of I-485s, and then they processed a lot of cases in 3 months, which increased the demand as well for visa numbers this past fiscal year.

The group of cases that were filed in July and August of 2007, when all employment-based categories were made “current,” were all completed by November 2011, and at that point, Mr. Oppenheim’s office had to depend on USCIS estimates for adjudication of cases. Mr. Oppenheim’s office had no pre-adjudicated cases that gave him a point of reference to determine what was left or pending. Mr. Oppenheim’s office has been very clear that they do not like retrogression.

Mr. Oppenheim’s office believes that there are 10,000 to 15,000 numbers used for upgrades every fiscal year. In March 2012, alone, 3,200 numbers were used to approve China and India adjustments that were EB-3 to EB-2 upgrades. The actual break down was 2,800 from India and 500 from China. All of these cases had priority dates before 2007, so clearly, they were upgrades. For example, 363 of the 2,800 EB-2 cases from India that were approved in March 2012, had a 2005 priority date. In March 2012, alone, over 1,000 numbers were used for applications from the worldwide quota that had priority dates before 2010, so these were likely upgrades as well.

USCIS previously insisted that the number of upgrade cases was insignificant. Mr. Oppenheim’s office tries to use 13,500 visas per quarter for all EB cases.

Our Analysis:

Since this meeting was held on January 31, 2013 - long before the demand data was updated with 18,000 spillovers from FB category to EB Category on Feb 15, 2013 -  his prediction would not include 18,000 spillovers (and hence future date movements).

As we mentioned earlier, visa allocation is a simple supply-demand problem.

The supply is fixed at 140,000 for EB Category. In addition, there would be 18,000 spillovers from FB category to EB category for  fiscal year 2013.

The demand, on the other hand, is increasing every year. The first surprising news is that EB1 India/China has already used up their annual quota and have started "taking" visa numbers from EB1 ROW. The second surprising news is that EB5 demand is 75% HIGHER than last year. The third surprising news is that (if demand is higher), there might be a cutoff date introduce towards the end of the year for EB2 ROW.

Since EB3ROW is stuck at 2007, there would be a higher number of people upgrading to EB2ROW. EB3 to EB2 porting is common and has been happening for long time (but not a lot). Due to slow date movements in EB3, more people have decided to jump over the fence and upgrade to EB2.

Another interesting statistics provided by Charles is that 55% of all visas are issued to dependents. However Section 202 of Immigration and Nationality Act (INA)  states that dependents would get max 2% of total visas in that fiscal year. So these two do not match up.

Also a while back, DOS had predicted that 13,000 visas woulds spillover to EB2 category. With much higher usage in EB1, EB5 and EB2 ROW categories, the amount of spillovers to EB2 India (and China) could be much lower than the initial prediction of 13,000 - compare this to FY12, where EB2 India and China each got 19,000 spillovers from other EB categories.

Remember retrogression of EB2ROW means it would start consuming spillover numbers from EB1 and EB5; as well as spillovers from FB category (per the limit set by law). This could means EB2 India may not move at all (or retrogress). It all depends on (a) future demand from EB2ROW (b) demand from EB3 ROW porting to EB2 ROW. Both of these can increase/decrease any time.

Many people are wondering whether DOS made a mistake when it moved the EB2 India date to 2010 in the April 2010 visa bulletin? Here are the pros and cons.

The advantage of doing that is (a) USCIS got a much better estimate of pending applicants in EB2 India category (though this does not include people porting from EB3) (b) A lot of people with priority date in 2010 and earlier were able to file the I-485 application and have EAD/AP card.

The disadvantage is that people with later priority dates (2008, 2009, etc) may have been assigned visa numbers instead of people with earlier priority date. If the PD hadn't been moved forward to 2010, there is a good chance the retrogression would still have occurred for EB2 India (due to increased porting) but the advantages listed above would not have happened.

BTW, unlike Charles Oppenheim prediction, we do not think EB2 India (or any country in EB2/EB3 category) would retrogress further (or not move at all) for the remainder of this fiscal year. This is assuming porting demand does not increase AND FB/EB spillover is applied. If demand increases before FB/EB spillover is applied, then retrogression is possible (though dates will again move forward in last quarter).

Some people are wondering whether dates will move forward till September and then retrogress again from October (start of new fiscal year)? There is a VERY HIGH possibility that dates for EB2 India will retrogress back to 2004 or 2005 in October 2013 Visa Bulletin. We will post another article on that topic little later.

The positive side to another gloomy prediction from USCIS/DOS is that there would be a spillover of 18,000 visas from FB to EB categories. Since Charles Oppenheim did NOT mention these huge spillovers (but he did mention about the law that unused visas from FB can be transferred to EB category), it seems he was not aware of the exact spillover count at that time. At that time he probably thought that the spillover from FB category would be low (maybe around 4,000 like last year).

The other good news is that there LOTS of immigration bills pending before Congress. Passing any of them would be huge help to people waiting anywhere from 5 years to 20 years. We just have to push Congress to act. Did you know: Only 4% of total bills introduced in Congress becomes law

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