Welcome back to Visalawyerblog! In this blog post we share with you an overview of the State Department’s August 2021 Q&A answer session with Charlie Oppenheim, Chief of the Immigrant Visa Control and Reporting Division of the U.S. Department of State, also known as “Chats with Charlie,” broadcasted every month on the State Department’s YouTube channel.
This new series features a monthly Question-and-Answer session with Mr. Charles Oppnheim and a Consular officer, where they answer many of the public’s frequently asked questions and provide a monthly analysis of each month’s Visa Bulletin. This discussion will provide details regarding what to expect in terms of the movement or retrogression of both family and employment-based preference categories on each month’s Visa Bulletin.
Questions for Charlie can be emailed in advance to VisaBulletin@state.gov ahead of each monthly session with “Chat with Charlie Question” in the subject line.
Be sure to subscribe to the State Department’s YouTube Channel and turn on your notifications so you do not miss any of these important updates.
Below are the highlights of the trends and visa projections for August 2021 and beyond.
DOS Q&A Session with Charlie Oppenheim: August 2021 Visa Bulletin Projections & Beyond
Charlie Oppenheim advises against sending “mass like” chain emails to the Charlie Chats email address
Before we get into the questions for this session, I wanted to add that I have seen a significant number of questions being received that maybe online chat groups have provided in a suggested “copy this text” approach that were sent to the Charlie Chat email address. I want to say that this is a very unproductive approach to asking questions, since we must open a significant number of messages with the same question, and that diminishes our ability to review the hundreds and hundreds of questions which are coming in each month. Therefore, it’s likely that we may miss important questions which listeners would like addressed. I am happy to see questions come in but this massive number of duplicates is unproductive to the listener group.
The Top 8 Advance Questions Sent in By Listeners
Q: I submitted all my documentation to NVC a long time ago and I confirmed on their website that everything is completed correctly. My priority date became eligible in March, but I have not yet been scheduled for my final visa interview. Why haven’t I been scheduled despite the eligibility and when can I expect to be scheduled?
A: This is a question we have been getting a lot. It’s important to say that throughout the COVID-19 pandemic, the NVC has continued to schedule appointments and is warehousing cases for Consular sections that have not been able to resume the routine Immigrant Visa processing. Depending on the country’s local restrictions and resources, the Consular sections abroad provide their projected capacity for scheduling to the NVC about 30-60 days in advance.
This allows NVC to begin scheduling those appointments and getting the information out to the applicants early. Other than age-out cases, inter-country adoption cases, and expedite requests, based on certain FAM regulations upon visa availability, the NVC schedules their Immigrant Visa appointments for visa categories in chronological order, based on the date in which the case was deemed “documentarily qualified,” meaning they have been asked to submit certain required documents, all those documents have been received, and have been verified. Then the NVC fills the available appointment slots in a first come, first out manner within each visa class, in accordance with each Consular section’s capacity.
I would advise listeners to refer to the guidance on the NVC Immigrant Visa backlog report website to view the worldwide data count of applicants which have been processed by NVC. Then that will determine how many have become documentarily complete. NVC and the overseas posts are trying to get to all the appointments and applicants as quickly as possible. It’s being done in chronological order and basically, they’re having to catch up on cases that could have been scheduled as far back as March 2020.
Q: Do you expect the India EB-3 final action date to reach January 1, 2014, application filing date which had been announced earlier this year?
A: Yes, the India third preference (EB-3) filing final action date for the month of September will be announced at January 1, 2014.
Q: Do you have any information regarding the amount of unused fiscal year 2021 family and employment numbers that there may be?
A: Sure. During the past YouTube events, I’ve mentioned that both the State Department and USCIS are doing everything possible based on their respective processing capabilities to maximize number use in both the family, employment, and diversity visa categories. I can tell you there’s been a significant increase in the amount of family sponsored number use at our overseas posts during the past 2 months. Therefore, I have lowered my previous estimate of unused family numbers slightly and now believe there will be approximately 150,000 unused family numbers.
On the employment side, the USCIS use of employment numbers continues to increase. It may not be at the levels many people would like, but it is increasing and they’re doing their best. I do believe there could be approximately 100,000 unused employment numbers. Again, the COVID related issues, which have had a dramatic negative impact on the processing of 2,000 fiscal 2021 cases, continues to make providing these estimates very difficult. Again, I can assure everyone that every effort is being made by the State Department offices and USCIS offices to maximize number use under the respective 2021 annual limits.
Q: In the last session, you mentioned that almost all application filing dates of the October 2020 visa bulletin had been reached by the final action dates in 2021. That is not true for family sponsored categories. Can you explain why?
A: Yes. When I said that most of the application filing dates announced in October 2020 had been reached, I was responding to a question about the employment-based preference categories. In the employment preference categories, except for the India EB-3 application filing date (which was subsequently retrogressed) all the employment application filing dates have been reached or exceeded. The retrogressed final action date for the India EB-3 category will be reached in September.
In terms of the family sponsored application filing dates, the difference is that approximately 95 percent of the family cases are processed overseas. The application filing dates which were announced last October were based on our hope that overseas posts would be able to provide processing and return to a somewhat normal operational status much earlier than has been possible during fiscal year 2021. Therefore, conditions have prevented us from having reached those dates.
Q: Can you provide any insight into the movement of family sponsored final action dates for October and beyond?
A: Sure. Except for Mexico and some Philippines dates, little if any forward movement can be expected in the family dates during probably the first 3 to 6 months of fiscal year 2022. This estimate is based strictly on current conditions and the current INA guidelines versus the amount of demand which we currently have. Again, the family dates which have been established this year, would in a normal time have maximized number use under the annual limit. Therefore, we are going to have all this demand “pent up” ready to go come October under the next fiscal year’s annual limit.
Q: The appropriation committee’s fiscal year 2022 Department of Homeland Security funding bill contains an amendment to recapture unused fiscal year 2020 and 2021 visa numbers. What would be the impact of such a proposal?
A: I’m very aware of this proposal and have analyzed it, but I am not at liberty to discuss the impact of any proposed legislative action in part even if it were ultimately passed. Proposed language is often changed before the final bills are enacted, so it would not be prudent of me to make any comments at this point.
Q: Many of the employment based final action dates have been advancing at a rapid pace this year and I am wondering if we can expect the dates to become current as happened in July 2007?
A: The answer is a definite “no” based on the current potential level of applicant demand which could utilize numbers under both the family and employment annual limits. There is no need for additional changes to categories to make them current if they are not already current.
Q: How do you determine if and how much you will advance the final action and application filing dates?
A: This is kind of a repeat question from one of the early events. When I am making a determination of the final action dates for an upcoming month, I consider variables such as how many numbers have already been used, how many additional numbers may be used in the current month, and how numbers remain under the various annual limits. I then look at the amount of demand which has been reported to my office at that specific time, and then compare the total with the numbers which I want to have established as a target for number use in the upcoming month.
I have a very similar process for determining the application filing dates, however there I am estimating how much additional demand I may need to be generated in the next 6-12 months to maximize number use. If I were to move – say the September application filing dates – it’s so that I would generate numbers which I think will be required under my respective targets for number use 6 to 12 months in the future. That’s why there was such a dramatic increase forward movement of many of the employment application filing dates last October. It was done on the anticipation that we were going to have a certain amount of potential demand for this fiscal year. Therefore, we will do the same process going into the next fiscal year.
Live Chat Audience Questions
Q: What are the chances of EB-D India filing date getting to August 2017 next fiscal year?
A: I’m guessing they are talking about the EB-3 category. I see no reason to expect that the India third preference category final action date would reach 2017 in the foreseeable future.
Q: Will the rest of the world make progress for F-4 August?
A: F-4 was advanced slightly for August. It may. Some of the worldwide dates may advance slightly for September along with some of the – Mexico and potentially the Philippines Fourth Preference Category – all may advance slightly for the month of September. As I stated earlier, I believe a significant period of time can be expected for the rest of World final action dates to be holding as we enter into the early part of fiscal year 2022.
Q: In the July visa bulletin, there is an approximately 7-month difference between filing dates for Indian nationals and for the final action dates. How does the State Department anticipate the processing of the remaining cases in the 7 months when current USCIS processing times for I-485’s is between 13 to 50 months?
A: In terms of the USCIS portion of the question, people would need to contact USCIS to find out about their processing times, but as I stated earlier, we look at the application filing date movement in terms of how much demand we believe needs to be generated to meet future number use demands. The amount of applicants in the weekly groupings for both the India employment first, second, and third preferences – all of them are very heavy filings in the various weekly groupings, so it is necessary to have significant large movements of the application dates.
Often, we get plenty of demand by moving it 1 or 2 months at a time. People that have been long-term viewers of the visa bulletin will remember that during fiscal year 2018 and fiscal year 2019, many times, for example the India second preference date was moving literally days per month forward movement – not a full week, not a full month, but literally 2-3 days at a time. Again, the amount of applicants in the India employment categories is significant in the weekly groupings.
Q: Are the spillover visas allocated only in the last month of the fiscal year?
A: No. If I were to make estimates early in the year that we would have unused numbers I would be able to start dropping them down, or moving them around, to be used in the various categories earlier than the final quarter. For example, based on my discussions with USCIS officials, I was able to determine that the amount of worldwide demand in the employment first preference category was going to be insufficient to fully utilize all the fiscal year 2021 numbers. So very early in the year, I started allowing those otherwise unused numbers to be utilized in the China and India employment first preference categories.
I subsequently determined that even with that happening, there were going to be unused numbers in the employment first preference category under the worldwide limit, and at that point I started dropping them down for potential use and employment second preference categories. Again, I can make the determination at any point in the year and for certain categories I often do it as early as October based on historical trends. Then the only risk making numbers available earlier in the year is if conditions were to change that may require some type of corrective action.
One of the questions we are often asked is about dates retrogressing. The likelihood of retrogressions occurring are typically in August and/or September. The reason is – I know that if I were to retrogress a final action date, it can cause turmoil for cases which are in current stages of processing, maybe very close to the end. I know that it is not good for our overseas posts, USCIS processing, or the applicants, so I fully realize the implications of doing so, so I typically wait as long as possible before doing any type of corrective action, and then if at all possible I try to do a complete recovery to the latest established final action date for the month of October so that there will be as little disruption as possible in the processing of cases.
These adjustments can be made at any time, and we always make our decisions based on the best information at that specific time. An example of this is when the India employment third preference application filing date was established last October. It was deemed that the date needed to be out to January 1st of 2015, to generate a sufficient amount of demand. The amount of India third preference filings in the month of October and November far exceeded the amount that the Immigration Service had expected. Therefore, it was necessary to retrogress that application filing date to limit future filings. We are constantly looking at patterns so that we can attempt to maximize number use each year.
Q: Given that the EB-2 India final action date has moved forward by 1 year and 9 months in fiscal year 2021 with one pending visa bulletin left, is it fair to expect at least the same movement in fiscal year 2022?
A: I think it would be too early to speculate on that. I will have to consult with the Immigration Service regarding the amount of pending demand of cases that they have on file already in active processing status and compare that with the amount of numbers which will be available for next year. Maybe when we have this event next month, I may have a little bit more insight regarding this question. At this point it’s a little bit early.
Q: In July of 2007, the Department of State made all EB-2 and EB-3 cutoff dates current for all countries. Is the DOS considering actions like this for this year given the anticipated waste of green cards?
A: No. I must have seen probably 50 of these questions come into the advanced questions. The answer is no. The difference between 2007 and now, at that time there was not sufficient demand on hand to utilize the numbers therefore the categories were deemed to be current. This year, there is sufficient applicant demand on hand in both the family and employment categories to fully utilize the fiscal 2021 annual limits, therefore except for those categories that are already current, there is no need to make anything else current.
Q: I would like to understand why the EB-1A timelines also are moving very slowly?
A: I’m not sure….everything is current in the employment first preference category. You can’t do much better than that.
Q: Can we expect all regions to be current for DV visas in October 2021?
A: No. All the DV 2021 regional rank cutoffs are current. I do not believe that will be the case in October. Typically, we start off the year and proceed through at least the first half of each diversity visa program year having some type of rank cutoff. Then as we proceed through the latter part of the year, if I see that the demand for numbers appears that it will be less than the annual limit, then we go ahead and make the categories current.
I believe for 2021 program, all the DV categories became current for July, and all but two countries may have become as early as May or definitely June. We go to current in that situation to maximize number use because the amount of respondents is insufficient to utilize all the available numbers. I can tell you that the amount of DV applicants who have submitted all the required documents for this fiscal year is probably under 50 percent of those who were actually notified. It’s incumbent upon applicants – if they want to act on their case they really need to do so in a timely manner and not wait for their visa availability whether it’s in the family, employment, or diversity category. If you are asked to submit documents, it is in your best interest to do so in a very timely manner.
Q: Can you provide any insight for movement for employment-based categories for fiscal year 2022?
A: I do not expect drastic movements in any of the employment final action dates at least in the first quarter. Then we will have to see. That comment is based on the current situation and my anticipation that there will be a significant amount of unused numbers from this year which means that applicants who are in active stages of processing with USCIS, their cases hopefully will be finalized early in fiscal year 2022, there by negating the need to make early movements of the dates or at least any significant movement of the employment final action dates.
Q: Will EB-5 in China final action date continue to move forward in September?
A: It will possibly move a week or two for the month of September and then it is likely to hold for an extended period of time. Vietnam has already become current. It will remain current. At this time, I anticipate going into fiscal year 2022, that the only employment fifth preference final action date would be that being applied to China employment fifth preference.
Q: Why is the EB-2 to EB-3 downgrade process time very slow? With EB-3 progression dates ahead and EB-2 behind it feels unfair for EB-2.
A: Well, it is based on the amount of potential demand for EB-2. It must be remembered that if an applicant has filed in the employment second preference category, and their case has been basically pre-adjudicated in that category or appears that it would be there, it remains demand there. The fact that the applicant has requested a downgrade to employment third preference – in the report information which is received in my office and that I use for the determination of the final action dates, that third preference downgrade only becomes apparent at the time it is finalized and they’re ready to adjust the person as an employment third preference. Therefore, since right now in recent months, the amount of third preference demand I have ready to go, is less than my targeted amount available for the upcoming months that’s why I’ve been able to advance the China third preference at a faster pace than I have the second. The same holds true for the India employment second downgrades to third, we’ve been able to move the India third preference at a much faster pace than India second.
Q: If you finish reducing the backlog for one category would you give more Immigrant Visa’s for another category?
A: Yes. The way the employment category distribution of numbers is laid out is that any unused employment first preference can fall to employment second. Any unused second can fall to employment third. Any potentially unused employment fourth and fifth preference numbers, they actually fall up to the employment first preference category thereby increasing that limit and then the fall down takes place.
Then what I do is in each individual preference category, starting with employment first, I look at the worldwide limit – say that the annual limit happened to be 60,000 numbers, and for example China and India were entitled to 4,000 each, that means they’re entitled to 8,000 of the 60,000 limit, if I determine at some point that the rest of world demand for the remaining 50,000 numbers is insufficient to utilize them, then I could begin allocating any of those otherwise unused numbers to be made available to India or China, strictly in priority date order.
That’s done whether it be the first preference, second, third, fourth, or the fifth. It applies to all the various categories. That is done because the congressional intent is to make sure that numbers may not be “wasted” in a particular category, just because there wasn’t sufficient rest of world demand, yet a country such as China or India may be able to fully utilize the numbers.
Q: What circumstances have changed in between June and July in which Mr. Oppenheim has changed course and now expects the “wastage” to be very large?
A: I think they’re misunderstanding something that was maybe mentioned in an earlier event. I had previously said that number use was maximized in fiscal year 2020. At the time I mentioned that there were only approximately 9,000 numbers unused under the 2020 limit, and in normal processing years, most of the employment numbers for the annual limit are used. We have reached the annual limits or are very close. I have been for several months stating that there were going to be significant months of unused employment numbers potentially, as well as the large amount of family preference numbers. I believe at one point I said that the amount of unused family numbers was going to make the fiscal year 2022 employment limit potentially well in excess of 290,000. I haven’t said that we were going to use all the numbers before. I think that may have been misinterpreted on what has been referred to in previous fiscal years.
Q: Do you expect EB-3 final or filing date to reach January 1, 2016, in October 2021?
A: I’m assuming this is related to the India second preference category. I would not expect reaching a 2016 India second, or an India third preference likely in fiscal year 2022. There is just too much India second and third preference demand at this time to be able to reach that type of a date.
Q: What will be the dates of filing for EB-2 and EB-3 India in October 2021?
A: I would lean heavily on what you see listed as application filing dates for the month of September. Again, I consult heavily with the USCIS officials on a monthly basis in making a determination if there is a need to be advancing the application filing dates. This is because the Immigration Service typically does at least 85 percent of the employment number use. They are the key player in keeping me informed in terms of the amount of filings they have, both the I-140’s, the filings for I-485’s etc. Again, pay close attention to whatever is listed in September and use that as an idea of what may happen. In past years, typically the Immigration Service will allow the application filing dates to be used during October and typically at least for 2 or 3 months. I believe there was only one year when they did not allow the filing dates to be used. But in other recent years they’ve allowed them to be used anywhere through November through January or February.
Q: How does an applicant know if their application is documentarily qualified? Can an applicant check their DQ status somewhere online?
A: I am not super familiar with the process that is done, but in recent years applicants have been able to upload information that is requested by NVC directly to an NVC website and once that is done, the applicant is able to track the status of their case throughout the process. They will be able to see at any given point where their case stands in the NVC processing. That process also allows NVC – if they had notified me to submit certain documents and I forgot to submit a birth certificate or some other type of information, they are able to respond to me quickly and notify me of the missing documents. Again, cases that have been filed and are being processed by NVC in recent years, there is a link on the NVC website. I’m sorry I don’t know the direct link but if you go to the NVC section you should be able to find it. I imagine that instructions on how to track the status of the case may be included in the information that NVC sends out requesting that information.
Change of Address/Email: If applicant’s change their mailing address or email address since filing their case, it is very important to always keep the National Visa Center informed of that change so that they can correctly correspond with the applicant because they’re going to send information or try to contact people based on the latest information they have. I know that in the old times when more transactions were occurring through the mail, often applicants would move, and they would not notify the State Department of their new address. They may have thought that it would have been sufficient to notify the Immigration Service and would assume that the Immigration Service would notify the State Department, but they really need to also contact the State Department with any changes to their contact information.
TIP: To submit documents to the NVC, log into CEAC and go to the “Start Now” buttons located under Affidavit of Support Documents and Civil Documents. When you have uploaded all the required documents for each section, press “Submit Documents”. The “Submit Documents” buttons will not work unless you have uploaded all of the required documents for each person. Once you press “Submit Documents”, your case will be placed in line for review at the National Visa Center (NVC).
Q: When do you expect the Worldwide F-4 adjustment dates to move again to become documentarily qualified?
A: The Worldwide fourth family preference dates have been advancing throughout the year, maybe not as quickly as they had last year or at the very beginning of the year. The Philippines dates and the Mexican fourth preference dates are not advancing at a very rapid pace, but I think that what you see for September is likely what you’re going to get family wise for rest of world for the next 3 to 6 months. Again, Mexico to some extent and possibly Philippines family dates may continue to advance somewhat, but rest of world very limited if any.
Q: When is a visa number actually considered utilized by the Department of State? Is it when USCIS approves the case or when the case is documentarily qualified?
A: It varies. We allocate blocks of numbers on a monthly basis for use at our overseas posts. For example, we’ve already provided a block of numbers for the applicants who are being scheduled for interviews during the month of August. That number is either used for visa issuance or at the end of August it would return to our offices in Washington and put back into the pool of numbers available for the upcoming months. This is one of the things where I say, when I’m making the determination of the final action dates, I have to take a lot of variables into consideration because I’ll be doing the September dates in early August. I’m going to have to estimate how many of the block of numbers that I gave out already for August, how many of those will be used and how many may be returned in the same consideration for September.
In terms of the USCIS, if a case has been filed with USCIS and they’ve actively been working on it, they may have interviewed the applicant, but between the time when the applicant originally filed their I-485 and the case was ready for final adjudication, the applicable final action date has retrogressed, then they can go ahead and request a visa number but it is going to go into our pending demand file for future use, because the applicable date at the time of final action on the adjustment of status governs the use of a number – not what was available when it was filed.
For example, say that an applicant were at the USCIS Washington district office today being interviewed, and they deemed that the person was fully eligible, the USCIS officer would enter certain required information into their computer, they would press a button, and get an immediate response from my office indicating that either a visa number has been authorized (which is typically what happens), or in the case as I mentioned before, if the date has retrogressed, it goes into the pending demand file, but at that time when they submit the request for final action on it, at that time when we authorize the number, that number is reduced from the amount available for the fiscal year.
Want to know more about the Visa Bulletin for this month? Subscribe to our YouTube Channel to watch attorney Jacob Sapochnick’s analysis of each month’s Visa Bulletin. Be sure to check out our helpful links below.
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- USCIS Visa Bulletin Webpage
- August 2021 Visa Bulletin
- July 2021 Visa Bulletin
- June 2021 Visa Bulletin
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