Check-in with Department of State’s Charlie Oppenheim regarding the August 2019 Visa Bulletin

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General Trends and Observations:  Employment based demand has increased steadily since late May 2019 in the EB-1, EB-2, EB-3 and EB-3 Other Worker categories.

Whereas in past years, Charlie often predicted that employment-based preference categories which retrogressed towards the end of the fiscal year "would have a full recovery" in October (the beginning of the next fiscal year), his prediction in the August 2019 Visa Bulletin is much more guarded. Charlie merely indicates in Section D. of the August 2019 Visa Bulletin that "every effort will be made to return these final action dates to those which applied for July." This means that while Charlie hopes that he will be able to bring these dates back to where they were in July, demand levels are so high and unpredictable, practitioners should not automatically count on a return to the July Final Action Date levels at the start of FY2020.

Charlie cautions that an immediate cut-off in visa usage, similar to that for EB-3 and EB-3 Other Workers, could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high for these categories. No forward movement in these Final Action Dates should be expected before October for certain employment-based visa categories. Any potential movement in these preferences would be subject to a change in the current USCIS demand pattern, and a larger than expected return of unused July numbers by overseas posts.

EB-1:

  • As predicted last month, the Final Action Date for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) retrogresses in August 2019 almost two years to July 1, 2016. The Final Action Date for EB-1 China, which was May 8, 2017 in July, joins the rest of world countries in retrogressing to July 1, 2016 in August 2019. The Final Action Date for EB-1 India holds at January 1, 2015.

EB-2:

  • The week prior to Memorial Day, Charlie started receiving data from USCIS that was different than what he had received in the past. This data showed that demand in the employment-based categories started picking up, with the daily totals increasing quickly. For example, through May 21, 2019, 1,800 numbers were used in the EB-2 category. Between May 22nd and May 31st, another 1,300 numbers were used, with this high pace continuing into June. Not only is the actual demand high, but as mentioned earlier, USCIS's projected future usage also remains high relative to the monthly demand targets for number use.

As a result of this high demand, all countries are subject to a Final Action Date in August. EB-2 Worldwide (including EB-2 China and EB-2 for all countries except for India) will have a Final Action Date of January 1, 2017, while EB-2 India advances one week to May 2, 2009.

 EB-3:

  • EB-3 China Other Workers holds at November 22, 2007.

  • The August 2019 Final Action Date for EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam remains at July 1, 2016. Charlie indicated that it is very difficult to say at this time whether these categories will become current again in October 2019. EB-3 India, which already had a Final Action Date, retrogresses further to January 1, 2006 in August.

Between April and May 2019, EB-3 demand increased over 25%. From May to June, the overall demand increased by more than 45%. During the first week of July 2019, EB-3 had already used 36% of the total numbers used during the entire month of June. This in turn necessitated immediate action to limit future number use by applicants with priority dates later than the Final Action Dates imposed for each country in the August 2019 Visa Bulletin. This is happening because number use is approaching the worldwide annual limit, and some countries have reached or are very close to reaching, their annual limits. USCIS interviews that were already scheduled may continue in USCIS's discretion. If the application is approvable, rather than receiving a visa number, USCIS's request for a visa number will be placed in Charlie's pending demand file and will be authorized for use once the applicant's priority date is once again "current". Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner.

Charlie cautions that an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high.

The fact that demand has increased so dramatically is not a surprise to Charlie. What is unexpected is that it is happening much sooner than expected. Prior to FY2018, if such corrective action was required, it normally occurred in September. In addition, the issues that arose in FY2018 were attributed to the changes in USCIS processing of employment cases.

At a macro level, the fact that it may be necessary to limit/cut-off future use of numbers means that all of the numbers available under the applicable annual limits will have been used. However, for applicants for which the ability to immediately file an I-485 adjustment of status application is critical to remaining in the U.S., the retrogression may have significant negative impact

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