DOS Insights And Predictions On Visa Numbers
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 ilw.com.
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General Process and Procedure for Movement of
Visa Numbers
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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.
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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.
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EB1 Should Have Excess Numbers
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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.
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EB2 Issues : China and India
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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.
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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.
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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.
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EB3
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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.)
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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.
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Conclusion
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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 www.murthy.com. 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.
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