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NPZ Immigration Law Blog

Wednesday, July 25, 2018

DOS UPDATE: VISA BULLETIN FOR AUGUST 2018

Family-Based Preference Categories

As noted in the August 2018 Visa Bulletin, the final action dates for FB-3 India and/or FB-4 India were originally expected to retrogress in September. According to the latest information from the NVC regarding documentarily qualified demand, which will help inform us about September dates, it appears that retrogression will not be required. In terms of the other family-based categories, demand has started to pick up in the FB-1 category and although FB-3 demand had been subsiding, it also picked up slightly.

Final action date movement tends to be more stable in the family-based preference categories since most family-based cases are processed through the National Visa Center (NVC), which provides the United States Department of State (DOS) with better visibility into demand. Interestingly, the global scheduling system, which allows applicants and their attorneys to schedule new appointments or reschedule existing ones can create perceived changes in demand and impact priority date movement. DOS is aware of this variable and tries to factor it into date movements.

Update on Consular Processing of Employment-Based Immigrant Visas and Impact of USCIS’s Interview Policy

As noted previously, the NVC has seen an increase in employment-based immigrant visa cases for consular processing following USCIS’ 2017 decision to interview all employment-based adjustment of status applicants. Through June, consular use of employment-based numbers increased by more than 4,000, compared to the same period in FY 2017. Consular processing has increased 40 percent for EB-1 cases with a similar increase for EB-3 cases.

In terms of the impact of the USCIS interview policy on demand for immigrant visa numbers, DOS reports that as of mid-April, USCIS District Offices seem to have “hit their stride” in requesting immigrant visa numbers, and that they are now on par with the rate at which numbers were requested when I-485s were processed primarily at the service centers. In fact, overall USCIS employment-based number usage through early July is higher than it has historically been at this point in the year, which led to the establishment of the EB-1 Worldwide final action date for August and might require other “limiting” action in September. With the continuing successful transition of employment-based adjustment cases from the service centers to the district offices and the ongoing exchange of data, volatility in final action date movements should be minimized by 2019.

Employment-Based Preference Categories

Summer of 2007 Déjà Vu? As noted in the August Visa Bulletin, “it has been necessary to impose an E1 Final Action Date for the month of August, with this date being imposed immediately.” This statement has prompted questions from Stakeholders as to whether USCIS will continue to accept EB-1 Worldwide adjustment of status applications for the duration of July. Stakeholders who lived through the summer of 2007 can take comfort that an abrupt end to filings is not expected.

In using the term “immediately,” DOS did not mean to imply that USCIS would stop accepting all EB-1 Worldwide applications as of the date of publication of the Bulletin. The term “immediately” simply refers to the future authorization of EB-1 numbers for cases being interviewed in July. Absent a contrary announcement from USCIS, DOS fully expects USCIS will continue to interview scheduled applicants and accept all EB-1 Worldwide I-485s for filing. However, upon conclusion of the immigrant visa interview, if the applicant’s priority date is on/after May 1, 2016, the request for an immigrant visa will be put in DOS’ pending demand file until the final action date again becomes current and the adjustment of status can be granted. Further retrogression of the EB-1 Worldwide final action date cannot be ruled out in September, but there will be a recovery of the date in October.

The final action date for EB-1 Worldwide China and EB-1 India will hold at January 1, 2012 in August, and again for September, with the anticipated recovery of visa availability in October. DOS will continue to watch trends over the summer and is working closely with USCIS to determine applicant demand which will be eligible for processing in October.

EB-4 India Tracks EB-4 El Salvador, Guatemala, Honduras and Mexico in August. As predicted, in August, EB-4 India joins EB-4 El Salvador, Guatemala, Honduras and Mexico, with a final action date of February 8, 2016, due to an influx of demand in May, June, and early July. EB-4 India will return to current in October.

There is a slim chance of forward movement in EB-4 El Salvador, Guatemala, Honduras and Mexico in September. If that occurs, the date will likely hold for a few months. DOS is cautious about advancing this category to avoid a subsequent retrogression. The ever-increasing availability of statistical data required for the determination of this date could lead to slightly more regular movements throughout FY 2019, rather than just during the final quarter.

China. EB-2 China advances two months to March 1, 2015 and EB-3 China advances 1.5 years to July 1, 2014 in August. EB-3 China, which had recently retrogressed due to significant downgrade demand, has subsided somewhat, allowing for this forward movement. At this point there has not been a dramatic increase in EB-2 China demand based on movement of that date, which is allowing some of these numbers to fall to EB-3. DOS cautions against expectations of regular advancement of EB-3 China during FY-2019, as such movements are dependent on the development of future demand patterns.

India. EB-2 India will hold at March 15, 2009 in August and is anticipated to remain there through this fiscal year. EB-2 Worldwide demand has picked up sufficiently enough to use the remaining EB-2 numbers which had allowed the India EB-2 date to advance. Although DOS will review the numbers again later this month, unless there is an unlikely dramatic dip in worldwide demand that would justify advancing EB-2 India further, it will continue to hold.

We reported previously that EB-2 Worldwide demand is increasing and might require DOS to impose a final action date before the end of the fiscal year. EB-2 Worldwide will remain current in August. As noted last month, if a final action date is imposed in September, the category will return to current in October.

EB-3 India will advance two months in August to January 1, 2009. The gap in final action dates between EB-2 India (March 15, 2009) and EB-3 India (January 1, 2009) continues to narrow, leaving only 2.5 months between these categories. As to whether DOS expects these dates will “flip-flop” as they have for China in recent years, DOS reminds members that DOS advanced the final action date for EB-3 India to generate demand for visa usage next fiscal year. Once that demand starts to materialize it is likely to slow EB-3 India’s advancement. The possibility of EB-3 India’s final action date advancing beyond that of EB-2 India cannot be ruled out but DOS is not able to speculate on this at this time.

EB-5. EB-5 China Non-Regional Center and Regional Center will continue to hold at August 1, 2014 in August and is expected to advance one week either in September or in October.

EB-5 Vietnam Non-Regional Center and Regional Center similarly holds at August 1, 2014. DOS expects this category to advance to a 2016 date in October but cautions that the category is likely to retrogress again once it hits its annual limit by spring.

QUESTION: Are China EB-5 numbers gone for FY 2018? If numbers are no longer available, why does the August Visa Bulletin show a cut-off date of 8/1/2014 instead of a U?

ANSWER: In early June, visa numbers were provided to posts for all EB-5 applicants who had been scheduled for visa appointments by the NVC. Posts were advised that additional numbers could not be provided for China and Vietnam “comeback cases” from earlier months, pending a review of the availability of such numbers. That review is now complete and has allowed some additional July numbers to be allocated to complete processing of China/Vietnam EB-5 applicants. This illustrates why it is important for applicants in numerically controlled preference categories to appear for their originally scheduled interview and overcome any potential refusal during the month of the original interview.

QUESTION: What can we expect in terms of the breakdown of numbers per continent for the FY 2019 DV lottery?

ANSWER: DV-2019 is likely to be consistent with DV-2017 and DV-2018. In FY 2018, DV applicants responded at a much higher rate than in recent years. In the past, there had been times when less than 50 percent of lottery winners in various regions proceeded with their cases. This year the response rate is well over 60 percent.

QUESTION: If a person has a DV-2019 number that is low enough to qualify under the quota, does it matter when Form DS-260 is filed? The best practice is to file the DS-260 before the DV number reaches the monthly cutoff published in the Visa Bulletin so KCC can schedule the interview right away.

ANSWER: It is always in the applicant’s best interest to act in a manner that would allow for the scheduling of a visa interview in a numerically controlled category as soon as possible, based on the applicable rank cut-off or final action date. Applicants who delay action or request that their appointments be rescheduled risk losing their chance for a visa. The same is true for an applicant whose visa is refused and who return in a later month to overcome the refusal, only to find that a visa number is no longer be available. A perfect example of this is what happened earlier in the year with the EB-1 China and India and has just occurred with EB-1 Worldwide.

QUESTION: But before October 2018, there will be no DV-2019 cutoff dates so it would seem as if it would be OK to wait and file the DS-260, say, in early January 2019?

ANSWER: Based on past performance of DV cut-offs that would be a reasonable assumption but remember that the determination of the DV cut-offs and the scheduling of appointments are done two months in advance. For example, applicants who have submitted all required information to KCC allowing them to be reported as documentarily qualified before the end of January, would not be scheduled for a DV interview until April, at the earliest.

If you should have any questions or need more information about the ways in which the U.S. Immigration and Nationality Laws may impact you, your family, your friends or your colleagues, please contact the U.S. Immigration and Nationality Lawyers at the NPZ Law Group – VISASERVE – U.S. Immigration and Nationality Lawyers by e-mailing us at info@visaserve.com or by calling us at 201-670-0006 (x107). You can also visit our Law Firm’s website at www.visaserve.com

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