Employment-based Categories

Why do the April Visa Bulletin final action date changes in the employment-based preference categories seem more dramatic than usual?

The advancements and retrogressions in final action dates in certain employment-based preference categories are attributable to several factors. First, in terms of timing, the advancement of certain categories is intended to spur sufficient demand early enough in the fiscal year to maximize number use by September 30th, 2018. Second, number usage over the last few months has depleted the “pending demand” of pre-adjudicated cases in certain employment-based categories. The lack of visibility into future demand results in final action dates advancing more dramatically than would otherwise be the case, erring on the side of generating too much demand rather than risking numbers going unused. Third, the transition of USCIS adjustment of status processing from service centers to field offices further impacts visibility into the full extent of employment-based demand. As a result, the spike in demand during this transition period that resulted in retrogression of certain categories may ultimately prove to be “artificial” and not be sustained throughout the year.

Ultimately, a lack of visibility into pending demand at USCIS means greater uncertainty into how to best move the final action dates. Dramatic advancements now could result in retrogressions next fiscal year if estimated demand levels are exceeded. DOS remains hopeful that next year, after the transition of employment-based cases to USCIS field offices is complete, he will have a better understanding of the data that is available and be able to limit volatile movements in the final action dates. In the meantime, The public is advised to file adjustment of status applications as they are current in case a later retrogression prevents filing.

Consular Processing vs. Adjustment of Status.

While consular processing has historically represented about 15 percent of employment-based immigrant visa processing relative to adjustment of status, consular processing has increased this fiscal year to 25 percent of overall employment-based cases. Consular processing of EB-1 cases during the first four months of FY 2017 was roughly 1,200 while that number for FY 2018 rose to about 2,600. Similarly, consular processing of EB-3 cases in Manila increased to 80 percent compared to adjustment of status, whereas that split used to be about even.

Note: One possible factor spurring an increase in consular processing is the uncertainty over processing times at USCIS field offices, given the new interview requirement.

EB-1. Last month, we reported that EB-1 India and EB-1 China were expected have final action dates imposed as early as late spring. Both will have a January 1st, 2012, final action date imposed starting in April. EB-1 Worldwide demand has been high, and a high volume of EB-1 India and EB-1 China cases were adjudicated to completion. DOS imposed a final action date to allow EB-1 Worldwide to remain current for all other countries which had not yet reached the per-country annual limit. It is unclear whether this demand is a one-time spike caused by the transfer of cases within USCIS, or whether that demand will be sustained. If EB-1 Worldwide demand starts to drop-off, it is possible that the EB-1 India and EB-1 China final action dates can be advanced late in the summer.

EB-2 and EB-3 China. In April, EB-2 China advances almost eight months to August 1st, 2014, and EB-3 China advances six and a half months to June 1st, 2015. In making this advancement, DOS has depleted all requests for visa numbers from his pending demand file. This dramatic forward movement is the result of having utilized all pre-adjudicated EB-2 China demand and ensuring that sufficient demand is generated to use all available visa numbers this fiscal year. If significant demand materializes, these cat