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

Welcome back to Visalawyerblog! In this blog post we share with you an overview of the State Department’s September 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 Oppenheim 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 visa projections for September 2021.

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

The Top 11 Advance Questions Sent in By Listeners

Q: Are you concerned with the anticipated large amount of unused fiscal year 2021 employment-based numbers which you mentioned last month?

A: Yes. We are very concerned about the potential amount of unused numbers under the fiscal year 2021 annual limits. That is one of the reasons behind having made China and India employment first preference categories current back in April and then having very aggressive forward movement of the final action dates since that time. The State Department offices, and I imagine USCIS offices as well, are doing everything possible in an attempt to maximize number use under the various FY 2021 limits.

Based on recent discussions with USCIS, they are on track to approve more adjustment of status applications than at any time since fiscal year 2005. They are dedicated to try to use all available numbers each year. Again, as I’ve mentioned in the past, everyone needs to remember that since March of 2020, both the State Department and USCIS offices, have been dealing with a variety of COVID-19 issues which have had a tremendous negative impact on our operational status, our staffing, and the ability to process large amounts of immigrant visa cases. For example, our overseas posts really only began returning to some sense of normal processing in April of 2021, and again USCIS is dealing with an all-time annual limit which is over 65% higher than they had last year. That is the long answer, but the short answer is yes, we are very concerned.

Q: When I look at the chart listing the final action dates, how do I know if my case is eligible to be scheduled for an interview at the overseas post responsible for processing my case?

A: The first thing you need to do is you must have submitted all the required civil documents to the National Visa Center, and that had to be done in time for your case to have been reported to the Visa Office by the first of each month. If so, and your priority date is earlier than the applicable final action date which is listed in the Visa Bulletin, then you would be eligible to be scheduled for an appointment for final action on your case. Overseas post processing capacity issues also need to be taken into consideration.

Q: What are the chances that the India EB-2 or EB-3 final action dates will be retrogressed in FY 2022?

A: I attempt to control the forward movement of the final action dates in a manner in which I can avoid any need to retrogress any of the established final action dates and at this time I do not expect a retrogression of any employment dates during FY 2022. If such action were required, it would not occur until much later in the Fiscal Year. Typically, when retrogressions occur, they are during the final quarter of the year, during August and/or September of the fiscal year. That is done because we know that when a date retrogresses it is very inconvenient for applicants. It is also very inconvenient for us because we would prefer to get the case finalized and so we want to have as little time inconveniencing anybody, and that inconvenience by delaying action to later in the year. Then in October we typically have a new supply of numbers, and we try to always recover from any retrogression which has occurred in the previous year.

Q: Why hasn’t the EB-2 final action date been advancing each month?

A: Actually, the India EB-2 date has been advancing at a rapid pace through July, as have most of the employment categories. It is important to remember that the movement of the various dates is subject to the amount of numbers available for use each month and the demand is often in weekly groupings. Sometimes we may have a targeted amount of numbers we would like to make use of but the weekly grouping prevent us from advancing the date too fast. There is typically a high concentration of applicant demand in the India weekly groupings as I said which can limit the movement especially later in the fiscal year as we start to approach the annual limits. The same principle is applied to all the final action dates.

Q: If we were to assume that the FY 2022 employment based annual limit will be at least as high as the FY 2021 limit, will there also be a significant amount of unused numbers as there will be this year?

A: That is a very hard question to answer at this point. One of the primary reasons for there being such a large amount of unused fiscal year 2021 numbers is the continued impact of the COVID-19 issues which have impacted processing. If that impact were to continue to subside during FY 2022, it can be expected that the employment number use totals will increase dramatically and will reduce any potential amount of unused numbers. It is always important to remember that just because there are more numbers available for use, doesn’t automatically guarantee that we will be able to have a corresponding increase in number use, because a lot of things such as staffing to handle such workload have to be considered. Just because we get more numbers doesn’t mean that there are additional staffing and other resources to process such cases. Also, some applicants are having difficulty obtaining medical examinations at this time. Many times, the applicants may not feel comfortable traveling themselves and so if they are overseas that could impact number use as well. Again, often applicants do not respond in a timely manner, and then suddenly you may get a surge of people responding all at once and that surge can in some cases be overwhelming. Typically, that type of surge is what may cause either a final action date to hold for a period of time, or as I mentioned toward the end of the year it may be necessary to take corrective action through retrogression or in some cases making it totally unavailable.

Q: In the past you would provide periodic visa availability updates in the Visa Bulletin, why has that stopped?

A: I stopped providing the updates because the COVID-19 related issues impacting processing made it somewhat unrealistic for me to provide reliable estimates, and whenever I post estimates in the Visa Bulletin, I want them to be reliable. Those are the most reliable estimates that anybody can look for because we have all the required information to arrive at these estimates. There is a lot of good people out there providing estimates on their own, but they do not have all the required information to make estimates and that is one reason why I only do my estimates typically on a quarterly basis. If the processing at overseas posts continues to improve in the coming weeks, I hope to be able to provide estimates of visa availability in the coming months either in the October or November Visa Bulletin. These would be the most reliable projections to use. There is a potential recapture legislative bill under consideration and if we don’t know what’s happening with that, that would most likely delay my posting availability information under the November Visa Bulletin.

Q: How does an applicant know if their case is documentarily qualified? Can they check the status online?

A: Yes. Once the National Visa Center has determined that you’ve paid the necessary fees, submitted the required immigrant visa application, your affidavit of support, and any other supporting documents that they have requested, you will receive an e-mail that your case is documentarily complete and in the queue for an appointment. For online processing cases, you can also login to the NVC Consular Electronic Application Center (CEAC) and access the case summary page. If you have completed every step of the process, all the status should be set to “Paid and Accepted.” That is the indication that your case may be documentarily complete and NVC will work with the appropriate Embassy or Consulate to schedule your appointment for you.

This is an excellent system that NVC developed several years ago which allows applicants to monitor the status of their case online. It is very useful as well because if an applicant submits certain documents and they forget to supply the Affidavit of Support for example, the National Visa Center will know immediately when they are trying to process the case and then they can contact the applicant and let them know the information is missing from the CEAC system. In the old days the process would be by paper mail but now the NVC has a “real-time” exchange of information with the applicant, so the system has greatly improved over the years. This is for cases that have been submitted in recent years. The cases that were submitted long ago are still under the old system so they are not going to be able to know the exact status of the case without contacting the NVC call center directly, but otherwise cases that were submitted within the last several years are all being processed online.

NVC CEAC Information

Q: I submitted all my documentation to NVC long ago and I have confirmed on their website that everything is completed correctly. My priority date became eligible in May (or any earlier month than that) but I have not yet been scheduled for my final visa interview. Why haven’t I been scheduled despite my eligibility and when can I expect to be scheduled?

A: This is an outstanding question and one we are receiving daily. Throughout the COVID-19 pandemic, NVC has continued to schedule immigrant visa appointments to posts that are able to conduct interviews and they are warehousing the cases for Consular sections that have not been able to resume their normal immigrant visa processing. Also, depending on a country’s local restrictions and resources, the Consular sections provide their projected scheduling capacity to our National Visa Center 30 to 60 days in advance. Other than age out cases, intercountry adoptions, and expedites per 9 FAM 504.4, upon visa availability NVC will schedule visa appointments for categories in the chronological order based on the date the case was deemed to be documentarily qualified – first in-first our processing. NVC then fills the available appointment slots in a first-in first-out manner within each visa class in accordance with the capacity at each individual Consular section which can vary from post to post and country to country.

You are able to refer to guidance on the NVC Immigrant Visa Backlog Report website to view the worldwide data of applicants who have been processed by the National Visa Center and are currently pending in a documentarily qualified complete status.

Q: How do you communicate with USCIS regarding the use of employment-based numbers and their processing issues?

A: The USCIS Ombudsman’s office hosts a monthly meeting during which we discuss a variety of issues regarding the number use in both the family sponsored and employment preference categories. In fact, we just had that meeting this morning and spent about an hour discussing where we are and where we think we are going to be going. We also have regular conversations with a variety of USCIS officials on the employment issues and the service center provides my office with statistical reports just prior to my determination of the upcoming month’s final action dates and the application dates. Then, I am able to utilize this information in my determination of the upcoming month’s dates.

Q: Is the National Visa Center still processing the documents which are being submitted by I-5 and R-5 applicants who were previously contacted despite those preferences having expired as of June 30^th?

A: Yes. At this time, the National Visa Center has not implemented any type of changes and continues to process cases submitted by I-5 and R-5 applicants who were previously contacted. These procedures remain under constant review, and they may need to be changed if Congress does not authorize an extension of the I-5 and R-5 categories in the future.

Q: There hasn’t been any dramatic forward movement for most of the final action dates in recent months. Do you expect there to be any major changes with the start of the new fiscal year in October?

A: No. With the exception of the Mexico and Philippines family preference final action dates, I do not expect there to be any changes in the family dates. If there were, they would be minimal at most. I do not at this time expect there to be any changes in the October dates for employment. So, what you see listed for employment in September is likely to hold once again for the month of October.

Live Chat Audience Questions

Q: In the October 2020 Visa Bulletin, the dates of filing for EB-3 India was January 1, 2015, and then this month moved back to January 1, 2014. Could you please tell us if January 1, 2015, is expected to be current in FY 2022?

A: I cannot speak to whether it might be current in FY 2022. That India third preference application filing date retrogression of the date from January 1, 2015, to January 1, 2014, occurred very early in the fiscal year after USCIS determined that there was an exorbitant amount of filings by India third preference applicants. The rate and the amount was much greater than they expected in the short term than was received. As soon as they realized that we retrogressed the application filing date so that people would not be submitting documents, time-sensitive information, etc. With September we have reached that retrogressed final action date. Whether we will be able to continue moving the India third preference final action date and as a result needing to move the application filing date remains to be seen.

Q: Do you expect EB-3 dates for India to reach February 2016 in the October Visa Bulletin?

A: That is a definite no. There would be no hope that that could happen.

Q: Could you share insights on where the EB India filing dates would be in October?

A: Again, I believe that the application filing dates for basically all but possibly with the exception of El Salvador, Guatemala, Honduras fourth preference date, I think everything else is likely to hold for October. There may be a need to move the China and India second preference application filing date, but that will be determined based on information I receive in the next several weeks. It is my understanding that USCIS will allow all the application filing dates to be used for filing for the month of October.

Q: Can you please explain how downgrade applications are processed? Did USCIS start looking into these applications?

A: That is a question best posed directly to USCIS. It is important to understand that if your case was originally filed say for example as India second preference, they would keep it there until the downgrade is finalized. So, if they had reported to my office that your case is documentarily complete according to their rules, we would have it in the DOS database as an India second preference. It would remain there while USCIS was processing your downgrade, for example to India third preference, and only once they have completed that India third downgrade would they remove the second preference request from my system and then re-request a number under India third.

So, the applicant would kind of have the best of both worlds. They would be pending in the second preference, so if that came to pass first – great they would be processed there – or if their downgrade comes through and is eligible then they get processed there as well. It is really no disadvantage to the applicant. It causes heartache for me because suddenly I may see a large amount of downgrades that I had not been expecting.

Q: Why are many dependent cases processed separately, for example I got my green card, but my wife did not, and we submitted all our documents together?

A: That I cannot answer. The only thing I can think of is if the principal’s application was originally submitted and then they acquired a spouse and dependent children at a later time, maybe there is not quite the connect on that. Also, say that the principal was born in one country, and the wife and child were born in another, that might also cause a slight disconnect. Typically, I would imagine that most cases are linked together fairly well.

Q: Will there be movement in F-4 expected filing dates in FY 2022?

A: At this point I still do not expect any movement of the rest of world dates, or any of the family dates, other than potentially Mexico and Philippines. I don’t expect the other dates to advance for the first 3 to 6 months. At this time, we have more than enough documentarily complete applicants to fully utilize all of the available numbers under the FY 2022 annual limit. At this point, again I don’t foresee any drastic changes for a considerable amount of time.

Q: Will the dates of filing reach July 31, 2015, in the October/November Visa Bulletin for this year?

A: I am guessing this is another India third question. No, I don’t – again, the reason for retrogressing the application filing date from January 1, 2015, back to January 1, 2014, was because of the excessive amount of demand which had been received by USCIS. I don’t think that anybody should have any reasonable expectation that the India third preference date will advance to the January 1, 2015, date that was announced last October. It is one of those things that could change. Again, watch for such information in terms of the potential movement of the India third preference final action date in the Visa Bulletin, because the application filing dates are typically set at a point where we believe the final action dates will be anywhere from 8 to 12 months in the future. Some categories where applicants are responding in a much more timely manner, that range may be decreased to 6 to 8 months.

It is very important for people to know that when USCIS notifies you that they need some type of information to be updated, for example a medical exam that may need to be updated, the applicant should send that information to USCIS in a timely manner, because that case is on hold if some type of documentation remains missing.

Q: Will FY 2021 DV lottery winner eligibility be extended?

A: That I cannot comment on. That would require some type of change. At this time, I can’t comment on that. That type of information would potentially be included somewhere on the travel.state.gov website if that were to occur, I am guessing that is where the information will be publicized. That is a wait and see type of situation.

Q: Any plans by the Department of State to remove the medical form requirement and to improve GC visa allocation and reduce wastage without Congressional approval, as done for the current situation happening in Afghanistan?

A: That is a policy issue that is way above my pay grade.

Q: For the upcoming Visa Bulletin of October 2021 how many months on average will the EB-3 India final action date move forward?

A: Zero. As I said, there will be no movement of the employment final action dates contemplated at this time and based on the amount of pending filings that USCIS has, there may not be any need to move most final action dates for a period of time during the early part of FY 2022. Just as the family final action dates are likely to hold for an extended period of time, we could see the same for the employment dates. This is something that I will address in detail when I put the visa availability item in either the October or most likely the November Visa Bulletin.

Q: Is it okay to send document scans without KCC’s request? There are different opinions about this out there.

A: That I would not feel comfortable commenting on. When an applicant is selected, there is detailed information on how the applicant is supposed to proceed with the processing of their case if they are interested. I would follow those guidelines and check the www. travel.state.gov website to see if there have been any changes. Follow the guidelines provided to you at the time you were notified, or you became aware of your selection.

Q: Is it possible that visas for applicants whose final action date became current in the September 2021 Visa Bulletin will be adjudicated by the end of September 2021 to ensure that the visa number is not lost?

A: I know that probably over 30,000 applicants have been scheduled for interviews for the month of September based on post capacity under the COVID-19 restrictions that are at overseas posts. Again, as mentioned early on the processing post has to follow the COVID guidelines in the host country for visa processing. I think it is highly unlikely that all the applicants who have priority dates within the final action dates announced for September – I think the percentage of them that will actually be processed to conclusion in September, is likely to be relatively small but consistent with those of recent months. Again, we are dealing with the COVID-19 issues and so that has severely hampered processing of cases. On the www.travel.state.gov website there are guidelines describing how the various cases are being processed and the “hierarchy” of doing so.

Q: Charlie you are good at your job but how can you say that applications are processing in order received?

A: I can only go by the information which I am being provided by our National Visa Center and I believe that information, and the information provided to me by USCIS. But there are always potential differences in the way things might be handled at different offices in terms of say USCIS processing. One office may be able to process applications at a much higher rate than another office. Also, I cannot speak in terms of the way USCIS processes applications as they are being received by the agency. At the National Visa Center, I do know that if a case is received today, it is in order and it will be processed ahead of the case that is received tomorrow. That is in our best processing interests in terms of following a case from initial receipt to the end. So, it is in our benefit to do a first-in first-out order at the National Visa Center processing.

Again, you never know what’s going to happen in different areas. Years ago, with labor certifications, there was a period of time in the mid 2000’s when there was a backlog of labor certifications, and there was a concerted effort to reduce that backlog. The idea was to process these certifications in a first-in first-out methodology. Unfortunately, when literally boxes of applications were being pulled out, the boxes weren’t always pulled off by the Labor Department in a specific order, so they may have pulled off one box that had labor certifications submitted later than others.

I saw that happening. I was speaking at an AILA conference and responded to a similar question, and I said – yes labor certifications are being processed in a first-in first-out manner, and I had hands shoot up around the room that said it may just be our firm, but we are getting a variety. Then hands started popping up saying the same thing. Obviously, the boxes that were being pulled down weren’t necessarily pulled down in a strict order. So, things happen but the best intentions are to do things in a first-in, first-our manner.

Q: Why can’t you advance the filing date for F2B? Family-based categories for people in the U.S. should be given equal treatment as the employment-based categories

A: Right now, I have advanced all the family preference categories to a point where the amount of documentarily qualified applicants far exceeds the annual limit in each and every family category. For example, in the F2A category where the limit is approximately 87,000, I have over 130,000 applicants, and the same thing in the other categories, I have way more applicants and if we were suddenly able to process – if on October 1^st all of our posts around the world and USCIS offices were able to go back and be processing at pre-pandemic levels, we would have to retrogress most of the family dates within a matter of 2 to 3 months because of the demand for numbers. So, we would be faced with retrogressions of those dates over a period of time.

Again, we are doing our best. The dates have been moved in all the categories to provide sufficient numbers to maximize number use and we cannot control what may not be possible due to conditions around the world in terms of processing. Just like people on this call haven’t been able to go to a restaurant or gym, or various places, we are facing the same issues – visa processing and the ability of Consular employees around the world are under the same type of constraints. We don’t have any magic wand that says we can process as if the COVID-19 situation has no impact at all. Again, in many of the categories as I mentioned earlier, the employment limit is 65% higher than it was last year and as far as I know there is no additional increase in staffing to match that.

Q: What will happen to the unused visas if dates are not moving?

A: Again, all the dates have been moved to a point to maximize number use. Advancing dates for the sake of advancing them serves no purpose, and potentially is very disruptive because when cases were able to proceed at a normal rate it would cause retrogressions, and people would be caught up in limbo. Again, all the dates are advancing at a reasonable pace. With my movement of the dates, I have been doing so as if the pandemic never occurred. Based on the annual limits I am trying to maximize numbers. So, in terms of determining the dates, I am following procedures exactly as I would pre-pandemic. The difference is that the pandemic is not allowing the numbers to be used at the rate we would hope for, and everyone would hope that the numbers would be maximized. That is everybody’s intent.

As I mentioned in the earlier broadcast events, during FY 2020 when the pandemic first hit USCIS was able to use all but 9,000 numbers under the FY 2020 limit and in most years the amount of employment and family number use is typically about 98% to 98.5% of the annual limits, so this situation we find ourselves in with the lack of number use during FY 2020 and 2021 is a complete anomaly. It does not represent what normally happens.

Conclusion

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