Visa Office Update on Priority Dates and Demand

On January 19, 2012, Business committee chair Mike Nowlan and Students & Scholars committee member, Roberta Freedom, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 with Charlie Oppenheim of the Visa Office.  Notes from the discussion are set out below.

The discussion pointed out that the EB green card usage has been very slow in FY 2012, so the U.S. Department of State is advancing the dates to determine how many cases are out there.  Mr. Oppenheim is also relying on the USCIS’ estimate for the number of cases out there.  Although the USCIS thought more cases would be filed, only 50% of their estimate have actually filed an Adjustment of Status (AOS) case. The reason for this movement has been in large part as a result of the clearing out of the EB-2 2007 AOS case.  Mr. Oppenheim emphasized that the DOS cannot “see” the I-140 cases that are approved and for which adjustment of status had been requested prior to September 2010. However, Mr. Oppenheim noted that he can “see” cases for which consular processing is requested.

Also, Mr. Oppenheim could not pinpoint a reason for the slow and low EB green card usage. He could only guess the economy or that foreign nationals lost jobs as a couple of reasons as reasons for the slow and low usage.

Furthermore, it is assumed that there is going to be low usage of EB-1 numbers again this year. According to Mr. Oppenheim’s 2012 projections, he has calculated a fall-down of 12,000 additional EB-1 numbers into EB-2. However, Mr. Oppenheim thinks that the EB-1 number availability may be down by approximately 1,000 as compared to last year because of heavier EB-5 usage as a result of unused EB-5 numbers “spilling up” to EB-1, then down to EB-2. Mr. Oppenheim seemed very surprised by the severe downturn of EB-1 numbers. The impact of Kazarian v. USCIS (596 F.3d 1115 (9th Cir. 2010)) on USCIS filings and demand for EB-1-1 numbers and the fact that it is difficult for an owner-beneficiary to obtain approval of EB-1-3 petitioners were cited as possible reasons for the low usage of EB-1.

Thus far, approximately 34% of the total number of permanent visas have been used this year, and 45% should be used by the end of February. Moreover, the adjustment of status through the USCIS accounts for 85% to 90% of all EB green card cases.

The impact on number usage of upgrades (EB-3 to EB-2) is still unknown. Upgrades were the reason the priority dates advanced so slowly in the beginning of FY2011.  For upgrades, the EB-3 case does not get cleared out of the system until the EB-2 for the same person is approved.

Another noted topic was the demand for visas for dependent family members.  Mr. Oppenheim also wondered whether the demand is weak for visas for dependent family members, which would also mean that fewer green cards are needed.

Mr. Oppenheim also noted that he meets monthly with the USCIS and the Ombudsman’s office to review the receipt of cases. There was a recent meeting to discuss the December numbers, and there will be a review before Mr. Oppenheim decides what he will do in March 2012.

Predictions: 

First, employment-based priority dates will advance again with the March Visa Bulletin, probably by at least a few months. Although an advance of one year is not likely, an advance of six months is possible.  With normal USCIS adjustment of status processing times, March is the last time for Mr. Oppenheim to get the AOS cases filed and possibly approved in FY 2012.  Mr. Oppenheim will probably then hold the priority date over the summer, and then retrogress or advance the date as necessary.  However, Mr. Oppenheim does not have enough data to predict demand on priority date changes in the last quarter of FY2012.

Second, the USCIS is agreeing to the priority date advances. However, significant advances are a bit of a gamble because if the USCIS becomes inundated with adjustment filings, the priority date will retrogress, and the USCIS will have to process EAD and advance parole extensions without additional fees.