DOS Q&A Session with Charlie Oppenheim: May 2021 Visa Bulletin Projections & Beyond


Welcome back to Visalawyerblog! Happy end of the week to all of our readers.

In this post, we would like to keep our readers informed about Visa Bulletin projections for the upcoming month of May 2021 and beyond.

The Department of State’s Consular Affairs Unit has launched an exciting new monthly series on its YouTube channel, discussing current visa trends and future projections for immigrant visa preference categories with Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State.

Every month, a Consular officer will hold a Question-and-Answer session with Charles Oppenheim wherein he will provide a monthly analysis of each month’s Visa Bulletin, including what to expect in terms of the movement or retrogression of both family and employment-based preference categories on the Visa Bulletin.

Foreign nationals currently waiting for visa availability should tune in for the latest information.

Below are the highlights of the trends and visa projections for May 2021 and beyond.

DOS Q&A Session with Charlie Oppenheim: May 2021 Visa Bulletin Projections & Beyond

Q: You had previously mentioned that the FY 2021 employment annual limit is approximately 262,000, do you expect that all of the numbers will be used?

No. Charles explains that he does not expect that all of these numbers will be used because of the visa processing backlogs caused by the COVID-19 pandemic.

Q: When do you expect that the DV rank cut off for Egypt might become current?

For the month of June all of the regional DV rank cut-offs have become current based on the amount of documentarily qualified demand. Charles Oppenheim expects that such status will remain throughout the year and that all countries will be current for DV processing effective for July 2021. Those who wish to proceed with immigrant visa processing must be documentarily qualified.

Q: If it is assumed that there will be otherwise unused numbers, which can be made available for use in the Employment Second Preference Category? Why isn’t EB-2 India moving at a faster pace?

Charles Oppenheim expects that additional otherwise unused numbers under the annual limit will become available, however he was reluctant to share precise data on the unused numbers that could be apply to the EB-2 India category, because it is necessary to ensure that visa numbers are available for other categories as well. He will continue to move the EB-2 India date aggressively during June and July 2021.

Q: Do you expect that the worldwide family preference dates will continue to advance through September?

With the possible exception of the family fourth preference category (F-4) in the Philippines, Charles does not expect any forward movement and any that occurs through August would be minimal forward movement based on recent data.

He expects the worldwide family fourth preference category and India family fourth preference category to advance in the month of June.

Q: Why does USCIS only allow the dates that are listed in the application Filing Dates chart to be used for such a short time each year?

Based on conversations Charles has had with USCIS, the agency makes their determination about whether to allow those dates to be used for filing they take into consideration issues such as the annual limits, the amount of numbers that have already been used, the amount of cases that have been filed and that are pending action. If they believe that the resulting totals are sufficient to use all available numbers under the annual limits, they may decide, that the Filing Dates chart no longer be used for filings.

Charles suggests that all applicants monitor the USCIS website very carefully in the coming months to see if the application date use has any type of change.

Q: Will Indians get a majority of employment visa numbers?

No. Charles makes clear that the Immigration and Nationality Act imposes a 7% per country limit to avoid any single country from being able to monopolize the vast majority of numbers in the various preference categories.

For the employment visa categories, section 202(a)(5) of the INA says that if the total demand for numbers will be insufficient to allow them to be used in a particular employment category, then those numbers can be made available strictly in priority date order without regard to any normal annual limits. Therefore, at this time, for example, in the Employment Second Preference category for India, number use does exceed their per country limit, and will continue to for the year.

Q: If I have submitted all of the required documentation, why hasn’t my case been scheduled for an interview?

In terms of the operational capacity of scheduling of immigrant visa interview, Charles points out that USCIS has been forced to deal with operational backlogs caused by COVID-19 related issues. Such backlogs have of course severely impacted the ability of overseas posts to process cases as they normally would. In addition, the scheduling of visa interviews is dependent on the country conditions of each particular post and safety has been a primary concern for the public and staff members at Consulates and Embassies worldwide.

Charles recommends for individuals to continue to monitor the websites of their respective Consulate or Embassy for information about operational capacity and services they are able to provide.

Q: Do you expect that the September final action dates will have surpassed the application filing dates that were listed in the October 2020 visa bulletin?

Yes. Charles explains that with the exception of the China EB-5 application date and India EB-3 application filing date, by September they will have been exceeded. Many have already been surpassed based on the May final action dates. The application filing dates which were listed in the October 2020 visa bulletin, are those where it was expected that the final action dates would be in September. Some of the dates have advanced throughout the year and will be advanced as we move forward in the summer months.

Q: Are the dates going to move?

As mentioned earlier, with the exception of the family fourth preference on a worldwide basis and India, Charles believes that there will only be limited movement of the rest of the final action dates. Philippines family dates are expected to move forward.

With the exception of the family fourth preference category, the amount of documentarily qualified, within the established May dates, exceeds all of the family preference annual limits. For this reason, future movement is likely to be very limited for this category.

On the employment side, there will be very aggressive movement of the June employment dates with the exception of the EB-5 China preference category, although EB-5 China can be expected to advance for the month of June.

Q: What are the chances of final action dates reaching what is in the filing dates chart by the end of September?

If you look back at the application filing dates that were listed in the October 2020 visa bulletin, those application dates should be reached by September, and most of them have already been reached or far exceeded.

Q: Do you expect any of the employment based final action dates for India to retrogress for EB-2/EB-3?

No. The final action dates which are in place at this time will be the minimum going through the month of September. Charles believes all of the dates for employment-based categories will continue to move forward through the remainder of the year.

Q: When will Nepal DV become current?

Nepal’s diversity visa rank cutoff will become current in the month of July. All of the DV regional rank cutoffs were made current for the month of June. DOS will be making the remaining DV rank cutoffs for Egypt, Nepal, and Iran, current for the month of July.

Q: Do you expect people born in Hong Kong to be put in the same backlog in the future as Mainland Chinese under Trump’s executive order last July?

At this time for family and employment-based categories, Hong Kong remains treated as an independent country. For the diversity visa program, applicants should refer to the announcement for the DV-2022 registration period for specific information on how the foreign state status for Hong Kong would be applied for that program.

Q: How many visas will spill over from EB-4 and EB-5 to EB-1/EB-2?

It is likely that the employment fourth preference limit will have an excellent chance of being reached this year. Any unused numbers would fall up to the employment first, as would any employment fifth preference numbers. As to the combination of the two, Charles expects there to probably be at least 10,000 numbers that would fall up to the EB-1 category.

Q: How do you determine how much the dates move for China vs. India in EB-2 and EB-3?

As previously mentioned, for the employment visa categories, section 202(a)(5) of the INA says that if the total demand for numbers will be insufficient to allow them to be used in a particular employment category, then those numbers can be made available strictly in priority date order without regard to any normal annual limits.

Right now, the employment second preference (EB-2) final action date for the month of May for applicants from China is December 1, 2016.

The India employment second preference (EB-2) final action date for the month of May is August 1, 2010. Therefore, it is safe to say that any unused employment second preference numbers that are otherwise unused, will be going to the India second-preference category.

Q: When do you think family preference priority dates come close to their filing dates?

The filing dates are typically 8 to 12 months out from where Charles believes the final action dates will be. Due to the COVID-19 issues impacting processing overseas, the family dates have not been moving as fast as one might normally expect, so it may take longer for some of the established family application dates to be reached.

Approximately 95% of the family sponsored numerical limit is processed by overseas posts, and approximately 85-90% of the employment-based numbers are used for adjustment for status cases by applicants that are already in the United States.

Q: Many people from India have been downgraded from EB-2 to EB-3, will the dates still move until January 2014?

The amount of downgrades from second preference applicants who have changed their mind and re-filed under the third preference category, will potentially impact the movement of the India employment third preference date. At this time, it is too early to tell. When DOS did retrogress the India third preference application filing date, it was done in consultation with USCIS headquarters, and the establishment of that 2014 India date was the projected goal for September. Every effort will be made to get to that point. DOS goal is to maximize number use under the various annual limits.

Q: How far do you believe conservatively that EB-2 China would advance in fiscal year 2021? Will EB-2 China priority dates advance rapidly in the next couple of months?

Yes. EB-2 China will be advancing rapidly in the coming months. Charles believes that it will get easily into calendar year 2017, and at least to the summer of 2017.

Q: What purpose will be served by making visa numbers available for over 100,000 DV 2021 selectees when until now Consulates have only issued 20 diversity visas?

DOS must proceed under the assumption that normal processing could return at some point. This allows the agency to potentially maximize number use under the various annual limits.

Q: The dates for India EB-3 category have been moved by 5 months in the May visa bulletin, are you expecting similar for the June/July visa bulletin?

Yes. Charles believes the India third preference category final action date will once again be moved aggressively for the month of June. He believes all of the June dates will move very aggressively at least at the rate that they were moved for the month of May, potentially at a greater rate. It is possible that in July, movement may slow down to some extent, although it at this point Charles believes this is unlikely to occur.

Q: What do you mean by documentarily qualified with respect to employment based for I-485 applications, at what stage of I-485 application processing would it become documentarily eligible?

Charles explains that for a case to become documentarily qualified, all of the required documents must have been submitted, reviewed, and been determined that they meet the required criteria. Any security backgrounds and everything else required for the processing of the case has to be ready in order for a person to be considered documentarily qualified.

Only the amount of applicants that have been reported to DOS as being documentarily qualified, at the time of the upcoming month’s determination final action date or the rank cutoff date for DV lottery, can proceed with immigrant visa processing in that month.

Q: You previously mentioned that case processing will skyrocket, however online stats are showing that the number of EB green card processing is still very slow. Do you know why? Are you still optimistic?

Yes. Charles is still optimistic that USCIS will maximize number use to the extent of their processing capacity. Charles states that it is important to remember that there was an extremely large number of filings in the month of October. Those filings, and all subsequent filings, must work their way through the process, before they reach the final interview status, which would result in the use of a number. Every effort is being made under the difficult conditions and staffing constraints etc. to maximize number use. Charles believes that given the fact that the 2021 employment limit is approximately 68% higher than it was last year, it would be unrealistic to expect all numbers to be used.

Q: Why have we not yet received the May interview dates at the U.S. Embassy in Cairo? When will May interview scheduling begin?

Most of the overseas appointments are scheduled by the National Visa Center. They must work through the cases once posts overseas makes the determination of the May dates, and provided that information to the NVC. They are only then able to begin reviewing cases to determine which are eligible for scheduling of visa interviews. Then the NVC must work with the various posts to see what their processing capacity may be. Scheduling on the NVC’s part has become much more difficult during COVID-19 when there is limited post processing capacity.

Q: Why is it so hard to release the bulletin the same day every month?

The Department of State attempts to make the determination of each upcoming month’s final action dates in the bulletin on or about the 8th of the month depending on how that falls in relation to a holiday or weekend. The release of the visa bulletin is ultimately impacted by a number of stakeholders, who must clear the release of the visa bulletin, and ensure that the appropriate cables have been issued to posts overseas containing instructions on visa availability.

Every attempt is made to get the necessary clearances and the visa bulletin out as soon as possible each month.

Q: What happens to last year’s FY 2020 122,000 visas that are unused in the EB category due to processing delays?

The FY 2020 122,000 unused family visa numbers were added to this year’s employment limit resulting in an approximately 262,000 annual limit. If for some reason, all 262,000 numbers are not used this year, then those numbers will fall back across or potentially used during the determination of the FY 2022 family sponsored annual limit. Based on past experience, Charles does not believe the unused FY 2021 employment numbers will make any difference in the annual limit for family going into 2022, and the normal 226,000 limit would be applied.

Q: Do you expect any retrogression in the DV visa bulletin if the documents processed by KCC progress enough?

No. Charles does not believe this will be the case at this time, based on the very low applicant response rate to date compared to previous years. There is always a chance for corrective action of some type, such as retrogression of the date or making the category unavailable if subsequent events make that necessary. At this point, Charles does not have any reason to believe there will be a need to re-impose any type of final rank cutoffs for the DV 2021 program.

Q: With family-based interviews not happening at posts, will the family-based third preference category retrogress?

No. According to Charles, none of the family dates will retrogress this fiscal year.

Q: Do we have any guidance from USCIS on how fast they are processing employment based green cards, given that there is a surplus of them in this fiscal year?

Charles states that the information he has from USCIS offices is that they are aggressively processing all available cases. Information about processing times is listed on the USCIS website.

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