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NPZ Immigration Law Blog

Monday, April 18, 2016

VISA BULLETIN FOR MAY 2016

 

Family-Based Projections. Because most family-based demand is generated at overseas posts, DOS has greater visibility into those categories and is able to move the final action dates more consistently than the employment-based categories, which has a high percentage of USCIS-based (adjustment of status) filings. As a result, dramatic fluctuations in the family-based categories tend to be rare and typically occur only when there is a surge in family-based applicants responding to the agent of choice letter and becoming documentarily qualified.

As noted in the May Visa Bulletin, the final action dates for FB-4 China and India will remain at July 22, 2003, consistent with the final action date for FB-4 Worldwide. However, we can expect to see changes soon due to an increase in demand in both of these categories in recent months. The FB-4 India final action date will likely retrogress, possibly as early as June. It may also be necessary to hold or retrogress the FB-4 China final action date in late summer. We will continue to watch these categories closely.

New Final Action Date for EB-4 and Certain Religious Workers (SR) Preference Categories. In May, a final action date of January 1, 2010 will be imposed for EB-4 and certain religious workers from El Salvador, Guatemala and Honduras. The imposition of a final action date for these countries in these categories is primarily attributable to a spike in demand for adjustment of status over the past two months for Special Immigrant Juvenile (SIJS) applicants. As noted in the Bulletin, any forward movement in these categories this fiscal year is unlikely.

DOS tells us that the per country limit for this category has already been reached for these countries for this fiscal year. Given EB-4 Worldwide demand, it is unlikely that there will be any additional "otherwise unused numbers" to allocate to these countries. Similarly, it is extremely likely that EB-4 India and Mexico will also become oversubscribed at some point during the summer months.

Folks who are impacted should plan to file I-485s for their EB-4 clients from these countries before May 1, 2016, when the cut-off date will be imposed.

EB-5 China. Although demand in this category is increasing, I-526 petitions are being acted upon more quickly so the final action date may continue to advance slowly. DOS has good visibility into demand in this category since most of these cases are at the NVC, although they are becoming documentarily qualified at their own pace. DOS will address EB-5s in greater depth on Friday, April 22nd at the 9th Annual IIUSA EB-5 Regional Center Advocacy Conference.

EB-2 and EB-3 Philippines. Since the last announcement, several folks have asked DOS for predictions for the Philippines employment-based categories. EB-2 Philippines remains current and DOS expects it to remain so for the foreseeable future. With regard to EB-3 Philippines, DOS expects the final action date to continue to advance a few months at a time, consistent with movement over the past few months. He does not foresee it returning to the Worldwide final action date this fiscal year.

There is significant pent up demand in this category and given the greater level of visibility into it, DOS is able to more the final action date consistently. Currently, the Texas Service Center has more than 1,600 EB-3 Philippines cases in the pending demand file and the Nebraska Service Center has more than 1,200. Demand at the U.S. Consulate in Manila is about half of that at USCIS. DOS hopes that the EB-3 Philippines final action date will advance as far as mid-2010 by the end of this fiscal year.

EB-2 and EB-3 China. Recently, number usage for EB-3 China has exploded due to the EB-3 downgrade effect that DOS has been expecting. Although anticipated, there was no advance warning as to when this demand would materialize, to what extent, or for how long. Demand for EB-3 China numbers exceeded 400 in March alone. EB-2 China spiked to 850 in March. April demand in both categories is expected to be at least on par with March demand, and may possibly exceed it. As a result, it would most likely be necessary to retrogress EB-2 and EB-3 China in June in an effort to hold number use within the annual limit.

EB-1 Demand and Impact to Other Categories. EB-1 demand from USCIS increased almost 100 percent from February (2,500+) to March (5,000+) which reflects more than 95 percent of the EB-1 Worldwide demand. This spike leaves fewer numbers to potentially spill down to other categories, which will impact EB-2 final action dates. Members should expect that the EB categories that typically rely on unused EB-1 numbers, such as EB-2 India, will be impacted. It remains to be seen whether a cut-off date will need to be established for any EB-1 countries this fiscal year.

India Employment-Based Final Action Dates. The final action date for EB-2 India will advance modestly, from November 8, 2008 in April to November 22, 2008 in May. Similarly, EB-3 India will creep forward from August 8, 2004 in April to September 1, 2004 in May. EB-3 demand, after the initial allocation of numbers, has been increasing by 100 month over month from January to February and February to March.

A number of factors make it difficult for DOS to accurately predict movement in these categories. Increased EB-1 usage negatively impacts the supply of available visas for EB-2 India, and upgrades are currently driving EB-2 India demand. As a result of these two factors, there may be fewer numbers available to EB-2 India than previously expected.

When USCIS requests an EB-2 number in an upgrade case, it also asks that the previously requested EB-3 number be cancelled. DOS has no visibility into EB-2 upgrade demand until USCIS completes adjudication of the I-485, requests an EB-2 number, and cancels the EB-3 number. This lack of visibility can potentially result in unexpected and dramatic changes in the EB-2 India final action date, as well as other employment-based preference categories.


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