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

The man in charge of the Visa Bulletin, Charlie Oppenheim, provides his insights each month of the state of immigrant visa numbers along with his projections for the upcoming month and fiscal year ending on September 30. Following determination of the dates listed in the September 2019 visa bulletin, the EB-3 category has become unavailable and will remain so through the end of this fiscal year. This includes not only EB-3 China and EB-3 India, but the entire category, including EB-3 Worldwide.

Charlie cautions that, similar to EB-3, 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 the level of demand results in those annual limits being reached prior to the end of the fiscal year.

At a macro level, the fact that there may be a need to limit/cut-off future use of numbers is a positive situation to the extent that it means that all of the numbers available under the applicable annual limits will have been used. However, for individual applicants in which the ability to immediately file for Adjustment of Status is critical to remaining in the U.S., the retrogression may have significant negative impact.

EB-1:

Charlie would like to remind practitioners that they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. Charlie is hesitant to predict what the Final Action Dates will be in the EB-1 categories for October. While he hopes the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover. However, regarding EB-1 India, which is now unavailable, Charlie is confident that it will not recover in October and may not do so for the foreseeable future.

In September 2019, EB-1 Worldwide advances 15 months, from July 1, 2016 to October 1, 2017. The reason these categories were able to advance is that the heavy surge in USCIS demand for that began in mid-May through early July 2019 did not persist. Not only did this demand not persist, but the return of unused EB-1 numbers from consular posts abroad provided additional room to allow the advancement of these categories.

In contrast, EB-1 India has become unavailable due to continued high demand, which resulted in full use of its numbers for FY19. The pent-up demand that will continue to accrue for the 6 weeks that this category remains unavailable will further delay the category's ability to recover.

EB-1 China demand remains strong, resulting in a retrogression of 2.5 years in the September visa bulletin to January 1, 2014 in order to limit any use of numbers for the remainder of the year.

EB-2:

EB-2 Worldwide advances one year to January 1, 2018, while EB-2 India inches forward 6 days to May 8, 2009. EB-2 China holds at January 1, 2017 for September 2019. Like EB-1 Worldwide, the movement for EB-2 Worldwide is due to the lessened demand and additional room made available after consular posts returned unused numbers.

Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide) will be able to recover to current in either October or November 2019.

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