DOS UPDATE: Employment-Based Visa Availability (Visa Bulletin for September 2018).

DOS provides the following in response to recent inquiries regarding visa availability for the EB-1, EB-2, EB-3, and Third “Other Workers” (EW) preference categories.

EB-1 Preference Category

The September 2018 Visa Bulletin indicates in Section H. Visa Availability in the Coming Months that for EB-1 Worldwide, “October Final Action Dates will be imposed for all countries. Limited, if any forward movement can be expected prior to December.”

In response to inquiries regarding the meaning of this section, according to this month’s DOS’s Notice: August 10, 2018, despite a one-month advancement in the September 2018 Visa Bulletin and previously expressed hopes that EB-1 Worldwide would return to current on October 1, 2018 (as it has in past years), heavy demand will preclude the category from returning to current in October 2018. DOS further believes that EB-1 China and EB-1 India will continue to have Final Action Dates in October 2018, which are earlier than those established for EB-1 Worldwide. It is unlikely that any of the EB-1 categories will have much forward movement before December or possibly into Q2 of FY2019.

EB-2, EB-3, and Other Workers Preference Categories

Due to a high demand for employment-based visa numbers, the “Final Action Dates” set forth in the September 2018 Visa Bulletin became immediately effective on August 9, 2018, for visa applicants in the Worldwide, El Salvador, Guatemala, Honduras, Mexico, and Philippines EB-2, EB-3, and EW preference categories. Visa applicants were notified of this development in the September 2018 Visa Bulletin in Section G. Oversubscription of September Employment-Based Second and Third Preference Categories, which indicates the following:
WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED SECOND (E2), Third (E3), and Third Other Worker (EW) PREFERENCES: As readers were advised in item F of the July Visa Bulletin, there has been an extremely high rate of demand for Employment numbers, primarily for USCIS adjustment of status applicants as a result of the successful implementation of their new interview process. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose E2, E3, and EW Final Action Dates for the month of September with these dates being imposed immediately for new requests for visa numbers. This action will allow the DOS to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.

The implementation of the above-mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

Although the “Final Action Dates” set forth in the September 2018 Visa Bulletin take immediate effect for Worldwide, El Salvador, Guatemala, Honduras, Mexico, Philippines, and Vietnam EB-2, EB-3, and EW preference cases, anecdotally, USCIS appears to be following the same policy that was implemented last month (July 2018) when the EB-1 preference category was similarly impacted, see Practice Alert: EB-1 Final Action Date in August 2018 Visa Bulletin, since USCIS appears to be continuing to accept I-485 applications for employment-based visa applicants with priority dates that are current according to the August 2018 Visa Bulletin “Final Action Dates,” though USCIS is not completing the adjudication of the application unless a visa is available under the cutoff date indicated in the September Visa Bulletin.

DOS recently contacted the USCIS Service Center Operations Directorate (SCOPS) to confirm that USCIS will continue to accept I-485 applications during the month of August for applicants in the EB-2, EB-3 and EW preference categories. SCOPS has confirmed that USCIS Service Centers and Lockbox facilities will continue to accept I-485 applications throughout the month of Aug