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DOS Insights And Predictions On Visa Numbers

by Sheela Murthy, et al., attorneys from the Murthy Law Firm

Many attorneys from the Murthy Law Firm attended a March 19, 2008 American Immigration Lawyers Association (AILA) meeting in Washington DC, at which Charles Oppenheim, Chief, U.S. Department of State (DOS), Immigrant Visa Control and Reporting Division, shared his insights and predictions on the future movement of visa numbers for various categories and countries. Mr. Oppenheim's opinions are relevant since he is in charge of the Immigrant Visa Control and Reporting Division, which is responsible for the movement of visa numbers each month and for releasing the monthly DOS Visa Bulletin. The Visa Bulletin and the establishment of cutoff dates is a method for monitoring and predicting the demand for visa numbers in the various categories. The cutoff dates published in the Visa Bulletin are important to many readers. The most recent Visa Bulletin is posted on
General Process and Procedure for Movement of Visa Numbers
The content of the Visa Bulletin, including cutoff dates and indications of current (C) or unavailable (U), determine both whether a pending Application for Adjustment of Status (I-485) case can be approved, as well as when an I-485 can be filed. It also determines whether a visa number is available to any U.S. consulate abroad for immigrant visa processing in a particular category. Mr. Oppenheim noted that the Visa Bulletin is intended to reflect the availability of visas for cases that are pending. Thus, if there is an indication of current, there are enough visa numbers for cases in that category that have been filed and are far enough along in the process to be ready for approval during the particular month for which that bulletin was prepared. It does not mean that there are enough visa numbers for all cases in that category that may exist either in the queue or that are waiting for cutoff date movement in order to be filed. Since the USCIS ties the filing of I-485 cases to the Visa Bulletin, however, priority date movement has the result of allowing cases to be filed, even if there will not be enough visa numbers available for the particular cases once they are reviewed by the USCIS. Many who filed I-485s during the summer of 2007 have come to understand this concept, as their cases are pending but may not be eligible for approval for a very long time due to a shortage of immigrant visa numbers under the per-country quota limits.  
The cutoff dates are set based upon estimates of anticipated demand for visa numbers. Taken into consideration are historical patterns, data regarding cases awaiting interview at the consulates, and reports from the USCIS about their case load. The dates are set in an effort to use all the immigrant visa numbers by the end of the fiscal year, however, efforts are made to avoid having a category become unavailable.
EB1 Should Have Excess Numbers
The employment-based, first preference (EB1) category is expected to remain current for all countries of chargeability for the rest of the fiscal year; that is, through Sep 30, 2008. The allowable seven percent per country limit has already been used for both China and India. Rather than listing the category as unavailable for these two countries, however, visa numbers were shifted to them from the other countries' unused quota in EB1, due to the excess and unused EB1 worldwide quota. In fact, a surplus of numbers in the EB1 category is anticipated. Therefore, it is expected that thousands of the numbers allocated to EB1 will be shifted down and made available to EB2, since the EB2 category includes any unused visa numbers in the EB1 category. This would occur before the end of the fiscal year.
EB2 Issues : China and India
The Visa Bulletin for the month of April 2008 brought positive news for nationals of India in the employment-based, second preference category (EB2). As explained in our March 21, 2008 MurthyBulletin article,
April 2008 Visa Bulletin : EB2 India Moves Forward, the category moved from being unavailable to a cutoff date of December 1, 2003, due to a shift of visa numbers that otherwise would have been unused, based on current projections. The law allows for otherwise unused numbers to be made available, regardless of the seven percent per country limitations. Thus, the EB2 India category received an influx of visa numbers for April 2008, and this will result in India's exceeding its seven percent per country allocation.
The influx of EB2 immigrant visa numbers was also allocated to China. A question was asked whether the shift in numbers to India was unfairly disadvantaging China, which also has not been current in the EB2 category. Mr. Oppenheim explained that China would have been unavailable for April 2008 had numbers not been shifted to that category to allow the cutoff date to remain at December 1, 2003. Therefore, while it is expected that India will use a great many of the visa numbers that otherwise would have gone unused, no other country of chargeability is being disadvantaged.
If the situation changes with respect to the demand for the EB2 worldwide category, then the cutoff dates may have to be changed for India and China. Mr. Oppenheim noted that the demand in the India chargeability, both for EB2 and EB3, is quite large; particularly as a result of the volume of I-485 cases filed during the summer of 2007. This period has become known as the VisaGate fiasco.
It is expected that the cutoff dates in the employment-based, third preference category (EB3) will remain the same during the month of May 2008. However, this depends on the USCIS's processing of cases, as visa numbers are assigned based on I-485 approvals. Therefore, the number of I-485 applications approved by the USCIS determines, to a large extent, the immigrant visa number usage. (The consulates also use EB3 visa numbers, but far fewer than the USCIS.)
The EB3 cutoff dates moved forward in March and April 2008 in an attempt to avoid a recurrence of the events of the summer of 2007. As our readers recall, in the summer of 2007, the Visa Bulletin reflected current for most categories in an effort not to have any immigrant visa numbers go unused by the end of the fiscal year. The dates are being moved more quickly in the spring, as there is a potential that USCIS will have to reallocate staff from I-485 cases to naturalization cases to address the backlogs with those filings in order to naturalize eligible individuals prior to the November 2008 general election. Moving the dates forward permits case approvals and full utilization of immigrant visa numbers before the end of the fiscal year.
We at the Murthy Law Firm sincerely thank Mr. Oppenheim for this helpful information and his willingness to share detailed explanations of the inner workings of the DOS Immigrant Visa Control and Reporting Division. Neither the shifting of visa numbers in the EB1 category, nor the fact that EB2 China would have gone unavailable in April 2008, was explained previously. Our clients certainly appreciate the shift of visa numbers from the unused worldwide quota to nationals of India and China, particularly in the EB2 category. While this obviously does not solve the simple lack of sufficient visa numbers, or the problems created by the seven percent per country limitation, it will help with some of the cases that otherwise would have had to wait until either the EB1 numbers rolled down or until further annual allocations made numbers available.

This article originally appeared in Murthy Bulletin Reprinted with permission.

About The Author

Sheela Murthy, et al., attorneys from the Murthy Law Firm attorneys from the Murthy Law Firm, has represented clients located around the world in all aspects of U.S. immigration. Attorney Sheela Murthy and her team of legal professionals handle cases for Fortune 500 companies, mid-sized and small companies, as well as individuals undergoing the U.S. immigration process.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.