Charles Oppenheim's Analysis of September 2014 Visa Bulletin

Charles Oppenheim's Analysis of September 2014 Visa Bulletin

Immediately following publication of each month’s Visa Bulletin, the American Immigration Lawyers Association checks in with Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State (“DOS”), to obtain his analysis of current trends and future projections for the various immigrant preference categories. Through these discussions, it is hoped that Charlie will provide us with additional insight, beyond the basic visa availability updates that are provided in the monthly Visa Bulletin.

Highlights from Charlie’s analysis:

  • EB-5 immigrant visa numbers continues to be available, which allows the category to be “Current”. Increase in demand for EB-5 China is expected to result in a cut-off date at some point in FY2015, possibly as early as June 2015. Another factor contributing to the possible cut-off is the decrease in annual limit for the EB-5 category to 9,900 to 10,600 this year based on the overall fiscal year employment-based annual numbers. Moreover, EB-5 applicant’s growing concern over obtaining approval before the possible sunset of the EB-5 regional center program on September 30, 2015 also contributes to the increased demand. It should be noted, however, that in the past the EB-5 regional center program has always been extended for an additional three-year period through legislation. We will have to wait until early FY2015 to see if the Congress will continue to extend the EB-5 regional center program. The EB-5 category will remain “Current” for all other countries throughout FY2015.
  • If INA Section 203(d) is interpreted as allowing derivatives to immigrate without counting them against the annual limit, then in family-based preference categories, it would accelerate cutoffs but backlog would still exist. In the case of employment-based preference categories, the aforementioned interpretation of INA Section 203(d) would eliminate the backlog, and all employment-based preference categories would remain current for the foreseeable time. However, filing/approval of new I-140 petitions may require cut-off dates for certain categories/countries, and they would most likely be within one to two years of the actual calendar date.
  • In June 2013, the priority date for EB-3 China advanced faster than EB-2China. This trend has resulted in USCIS receiving numerous EB-3 “downgrade” petitions for Chinese EB-2 beneficiaries seeking to take advantage of the more favorable EB-3 priority date. The increased demand caused the EB-3 China to retrogress to October 1, 2006. The retrogression dissuaded many Chinese EB-2 beneficiaries with very early priority dates from downgrading to EB-3. Consequently, the demand for EB-3 China was lower than expected, and allowed this category to slowly advance to November 01, 2008.
  • EB-2 India will likely retrogress in FY2015, possibly as early as November 2014