Thursday, December 1, 2016
• The imposition of a final action date for EB-4 Mexico
• A reminder regarding the December 9, 2016 expiration date of the non-minister EB-4 special immigrant category and the immigrant investor pilot program (I5 and R5)
• A prediction that EB-1 China and EB-1 India will be subject to a final action date “at some point,” and
• A prediction that EB-2 Worldwide, EB-2 Mexico and EB-2 Philippines will be subject to a cut-off date no later than July.
QUESTION: In an effort to plan for medical exams, could you please comment on how much movement you expect to see in EB-4 El Salvador/Guatemala/Honduras over the next 12 months?
ANSWER: This is very difficult to predict because the State Department lacks information regarding the volume of cases in progress at USCIS in this category and does not know the rate at which USCIS continued to pre-adjudicate cases after the final action date was imposed. We are aware that there was a very large volume of EB-4 Mexico cases already processed with 2015 and 2016 priority dates, and this is why we imposed a cut-off date for December. Previously, we expected that a cut-off date would not be required until early summer. Despite the high demand, at this time we do not anticipate a retrogression of the EB-4 final action date for these four countries this fiscal year, but because of the lack of visibility into USCIS data, we will continue to monitor the situation closely. To get a sense of how high the level of demand is, almost as many Mexico numbers were used in October as were used in the first seven months of the last fiscal year. This year the annual EB-4 limit is slightly lower and there is greater demand. Additionally, the imposition of a cut-off final action date often causes more eligible applicants to apply more quickly, given concerns the date may retrogress again. For example, October demand for EB-4 India appears to be higher than normal.
Given the uncertainty in these categories, members should consider advising clients to wait to obtain the medical exam until the case is current, or at least until there is consistent forward movement in the final action date. In particular, it would be unwise for anyone with an EB-4 2016 priority date from El Salvador, Guatemala, Honduras, or Mexico to obtain a medical exam at this time.
QUESTION: How close are you to hitting the EB-4 annual limit for El Salvador, Guatemala, Honduras and Mexico?
ANSWER: None of these countries has reached the annual limit for this fiscal year yet, but we expect them to do so early in FY 2017. Once they reach the EB-4 per country annual limits, future number use will be based on the availability of otherwise unused numbers under the EB-4 annual limit. This will ultimately increase the total number of visas provided to EB-4 beneficiaries from these four countries this fiscal year.
OBSERVATIONS ON OTHER CATEGORIES
The final action date for EB-3 China is approximately ten months ahead of the EB-2 China final action date. This phenomenon has existed for the last few years and tends to spur greater demand for EB-3 China based on requests to “downgrade” from EB-2 China by filing a new I-140 petition based on an existing certified EB-2 labor certification. When asked how quickly it plans to close the gap between these two final action dates, DOS noted that while it fully expects this gap to continue to close, how soon it occurs will depend on demand. Forward movement of the China EB-3 date has been limited because of the expected significant influx of “downgrade” demand, which resulted in retrogression in earlier years. If such demand fails to materialize in the coming months the date will begin to advance at a faster pace.
EB-2 India continues to receive significant demand, which DOS attributes to EB-3 upgrades. It is hoped that this final action date will get into 2009 at some point this fiscal year, but DOS does not yet have a sense as to how quickly that might occur. There continues to be significant demand for EB-2 Worldwide, and if that continues, it will leave little, if any, otherwise unused numbers to reallocate to EB-2 India. In past years, EB-2 India has often benefitted from the addition of thousands of otherwise unused numbers not required for use by other countries.
In the December Visa Bulletin, DOS projected that EB-3 India would move up to one week, hold for several months, then move one week, and then hold again. When asked to comment further, DOS added that it expects EB-3 India to hold in January, advance up to one week in February, and hold again for a month or two before advancing modestly again.
EB-1 demand remains strong with EB-1 India having already surpassed it’s per country limit for this fiscal year. Although not yet there, EB-1 China is close to reaching it’s annual limit as well. DOS expects to impose a final action date again this fiscal year for EB-1 India and EB-1 China. It anticipates that will happen much earlier than last year, but is not sure when. Given the current pace of EB-1 demand, there will be no EB-1 numbers available to fall down to EB-2, and this will put additional pressure on the final action dates in that category.
Demand has also not abated for EB-2 Worldwide/Mexico/Philippines, causing DOS to speculate that a date will be imposed no later than July.
DOS has been waiting for some time for demand to be generated in EB-3 Worldwide, which has generally been current for more than a year. DOS is watching demand very closely, and though it has started to see an increase, it is unclear whether this demand will be sustained.
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