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

Welcome back to Visalawyerblog! We kick off the start of a brand-new week with an overview of the June 2021 Visa Bulletin. Follow along as we provide you with an overview of the State Department’s monthly Q&A answer session with Charlie Oppenheim, Chief of the Immigrant Visa Control and Reporting Division of the U.S. Department of State.

In this post, we summarize Charlie’s Visa Bulletin projections for the upcoming month of June 2021 and beyond.

We recommend our followers to subscribe to the State Department’s YouTube Channel to catch all of the details relating to the agency’s new monthly series on its YouTube channel.

This new series will feature a monthly Question-and-Answer session with Charles and a Consular officer, where they will answer many of the public’s frequently asked questions and provide a monthly analysis of each month’s Visa Bulletin. The 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 to VisaBulletin@state.gov ahead of the monthly session with “Chat with Charlie Question” in the subject line.

Reminder: Tomorrow, Tuesday May 25, 2021 at 1:00 p.m. ET, the Department of State will be hosting a YouTube live session relating to the visa backlog. The State Department will also be discussing how Consular sections will be prioritizing visa cases during the phased resumption of services. Make sure to subscribe to the YouTube Channel and turn your notifications on so you do not miss any of these updates.

Below are the highlights of the trends and visa projections for June 2021 and beyond.

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

Q: Do you expect that the FY 2021 family sponsored, and employment based annual limits will be reached?

Of the 400-500 advanced questions received by the Department of State, this was the number one question.

No. We do not believe – based on the implications of the COVID-19 situation and other issues which have impacted visa processing since October – we do not expect that those limits will be reached. The processing of cases at overseas posts has resumed in recent months but we are still not at all at the normal processing levels. My guess is that the USCIS offices are having the same processing issues.

Q: What do you expect that the fiscal year 2022 family sponsored, and employment based annual limits will be?

Under the current INA guidelines, we expect that the family sponsored annual limit will once again be 226,000, it has been that way since about fiscal year 2000. For the employment-based limit, I now expect that the limit will be at least 290,000 for fiscal year 2022, that will be another all-time high in terms of the employment limit.

Q: Do you expect that China, and India EB-2 dates will continue to advance?

Yes, we will continue to advance those dates and most other employment dates as well, with the probable exception of EB-5 for China, but all other employment dates will be moved aggressively through the end of the summer, and most likely in the early part of fiscal year 2022 as well, again based on the expected exceedingly high annual limit for 2022.

Q: Do you expect that the worldwide family preference dates will continue to advance through September as well?

Originally, we had expected the movement of the family dates to have slowed or stopped for the summer months, but based on changing conditions at our overseas posts, which are allowing additional numbers to be utilized, there is an excellent chance that we will be able to continue advancing many of the family dates through the summer.

Q: Which countries typically use the majority of the employment-based visa numbers?

China and India typically use the vast majority of the employment numbers. The reason being, these applicants have the earliest priority dates, and also if there are otherwise unused numbers available under the annual limits, those otherwise unused numbers can be made available strictly in priority date order to the applicants with the earliest dates, again those typically being China and India particularly in the EB-2 and EB-3 India preference categories.

Q: How are the financial action dates determined for each month?

We consider a number of variables when making a determination of the dates, based on preference category, annual limits, the overall per country limits and category limits. We determine how many numbers have already been used, how many additional numbers we expect to be used during the current month, and the amount of known demand for which number use might be required based on the movement of the final action dates for the upcoming month. Those are just a few of the variables that are involved, there are a number of others, but those are the highlights.

Q: Does USCIS share information with your office regarding the amount of cases they have in various stages of processing?

Yes, we are very lucky. The USCIS Ombudsman’s office hosts a monthly meeting at which State Department, USCIS Offices, sometimes other government agencies are on the call or at the in-person meeting in earlier times.

We discuss the number situations, and at the beginning of each month, USCIS provides us with a very detailed report indicating the amount of demand they have which is in various stages of processing, in the various categories. We use that information in the determination of the final action dates, knowing that such demand could require the use of a number during that upcoming month. For example, at the beginning of May, I received the report, I was able to look at that and based on the information there, determine what the June employment dates should be, based on the likelihood numbers would be used during June.

Q: At what point is a number allocated for use by an applicant based on the determination of the monthly final action dates?

If the applicant has already been reported to our office as being documentarily qualified, meaning that they have submitted all of the required documents, that are normally required at the time of the visa interview, and their priority date is within the newly announced final action date, the numbers are immediately allocated for potential final action on their case. Then throughout that month and the upcoming month, numbers are continually allocated as new cases can be finalized, because all of the required processing on them have also received and finalized.

For example, I believe one of the questions last month was about the USCIS offices requesting additional information on the case such as a new medical examination etc. Well, that new medical is received and then once received, immigration could request an additional number for use by that applicant.

Q: Do you expect any of the final action dates to be retrogressed?

No, we do not expect any of the family sponsored or employment based final action dates to be retrogressed, either in fiscal year 2021 or for the foreseeable future in fiscal year 2022.

As we move forward, we do expect that many of the family sponsored final action dates will be held for an extended period of time, once our overseas posts do return to completely normal operating status – most likely sometime in next year when they would be held. The reason being that the dates which have already been established, that will provide sufficient demand, will probably utilize the vast majority of 2022 numbers, at least for the first half of the year, potentially moving forward into the second half again. So, in terms of family movement of dates they are likely to stop once overseas processing resumes to full operational status.

Q: Do you expect any of the DV-2021 rank cutoffs to be retrogressed?

No, all of the DV rank cutoffs will remain current through the end of the DV-2021 program.

Q: Do you anticipate EB-2/EB-3 with a September 2011 priority date will retrogress in fiscal year 2022?

No. We do not believe that will happen again with the anticipated high limit for fiscal year 2022, I think that everybody can assume that all of the employment dates will continue to be advanced at a very aggressive pace, at least for the first half of the year, then depending on the amount of new filings and processing rates, things may slow down or have to be held at some point during the second half of fiscal year 2022.

Q: How much movement can we see with EB-3 in the July visa bulletin?

Once again it will be very aggressive. I think it is safe to say that most, if not all, of the application filing dates which are listed for employment in chart B of the bulletin, with the exception of China EB-5, will be reached by the end of the year. Again, expect very aggressive movement of the employment dates for the month of July.

Q: Will the family fourth preference category retrogress?

The family fourth F4 preference category has never reached 2021. The date did retrogress in fiscal year 2020. The reason being, throughout fiscal 2019, the response rate by applicants who had been requested to assemble and submit required documentation was extremely low, as a result the worldwide family fourth preference date had been advanced at a very rapid pace to try to maximize number use under the family sponsored fourth preference category. Then, eventually the response rate did start picking up, therefore we had to retrogress it because the amount of available numbers was insufficient to meet the new demand. We have been slowly recovering from that retrogression during the course of the last year and a half.

Q: When can we expect 2016 March EB-3 to be current?

I am guessing they are speaking about India EB-3, because the EB-3 worldwide preference category is already current, and the EB-3 China third preference category date is in 2018, with the EB-3 India being in 2011. I think that EB-3 India’s preference date is likely to advance into 2012 in the near future. Beyond that we will have to continue to watch incoming demand.

Q: Is there any chance in spillover for FY 2021 to FY 2022?

Yes. I expect that the fall across under the INA guidelines of unused family numbers, which are automatically added to the employment annual limit for the following year, I believe that will result in the fiscal 2022 employment-based limit being at least 290,000.

Q: How is your work audited, for the way you move visa bulletin dates?

We monitor the number use and the dates constantly. Immigration looks at it as well. Over the years, the OIG has also looked at the methodology etc. in the past and been satisfied with the results of their studies as well. Basically, everything that is done with the movement of the dates is done in an effort to comply with the INA guidelines. They are pretty cut and dry. For example, the preference limits, the per country limits, how otherwise unused numbers may be allotted etc. has already been outlined by the INA, so it is fairly easy to follow those guidelines.

Q: What is the point of advancing Indian EB-2 filing dates as USCIS refuses to accept adjustment of status filings for the month of June 2021?

The State Department has no jurisdiction over what they may choose to do, but we continue to advance the application filing dates, because that allows our National Visa Center to contact eligible the applicants based on the movement and ask them to begin assembling and submit the required documentation. That is an excellent way for me to gain much needed visibility in the potential demand when and if I were to move the final action dates.

The immigration service has a formula which they use to decide which chart will be used for adjustment of status filings. I would suggest that listeners carefully monitor the USCIS website which provides that information on whether the application dates will be able to be used for the upcoming months. At this point, I fully believe that the dates which are announced in the October visa bulletin for application filing dates, I fully expect those to be allowed to be used for filing. That has been the standard policy in recent years.

Q: Shouldn’t the spillover go specifically to India since it is the most backlogged?

No. What the spillover is – we are currently estimating that there will be approximately 150,000 unused family sponsored numbers. Those 150,000 numbers get added to the 140,000 minimum employment based annual limit, resulting in the 290,000 figure. Then, the INA guidelines indicate that in the EB-1, EB-2, EB-3 categories, those preference categories are entitled to 28.6% of the annual limit, and the EB-4 and EB-5 preference categories are entitled to 7.1% of those annual limits. Then there is also a 7% per country annual limit which is applied to that 290,000 figure, and once that per country limit is established, then once again those 28.6% and 7.1% limits are imposed to the availability of numbers within an individual country.

The INA guidelines that impose a 7% annual limit – the intent is to prevent a handful of countries from potentially monopolizing all of the available numbers, giving an equal chance for applicants around the world to have use of the numbers. Then if the numbers are not being used in the various employment categories, then those “otherwise unused numbers,” under the annual limit can be provided to the countries which have applicants with the earliest priority dates.

Q: Why is the difference in the filing date and final action date chart in the India F-4 category only 6 months, when in other categories the difference is between 9-12 months?

With the application filing dates, they are established at a point where we believe the final action date is likely to reach within the next 8-12 months. The amount of applicants in the India family fourth preference category which have applied and submitted all of the required documentation, is sufficient within that roughly 6-month period, to utilize all of the numbers we believe will be available in the near future. Once that level of demand starts to be diminished, then the application filing date for India fourth preference would be advanced. Those dates are established in advance depending on the various preference categories.

Q: Does the State Department have authority to make all priority dates current if USCIS does not use the employment-based visas available this year for example the 262,000 for FY 2021?

The way the final action dates are determined; we have a number use target for a given month. We compare that target with the amount of numbers available and the demand, so we look carefully at the amount of demand which could potentially utilize the available numbers. If there is no sufficient demand that we can see, then a category for example, in the Worldwide EB-3 preference category, that is currently deemed to be current, because the level of demand that we have on file at this moment is not sufficient to fully utilize all the available numbers, but if we were able to see that demand was there, we might have to establish a final action date.

Q: Why did you move the family first preference filing dates aggressively, and are you planning to move the priority dates aggressively?

With the application filing dates on the family first preference category, once again, we wanted to stimulate applicant responses so that we could generate sufficient demand to fully utilize the available numbers. The advancement of the family first preference final action date has also been done in a manner to allow enough applicants to be ready to go, and potentially use all of the available numbers under that limit. The first preference annual limit is 23,400, so by the end of the year we want to have a date which would generate enough demand to allow all those numbers to be utilized.

Q: Out of 262,000 visas which were available to employment immigration, how many visas have already been used and how many visas can be expected to be used by the end of this fiscal year?

We do not publish mid-year figures or discuss that. In terms of number use, I do believe that both on the family and employment side, there will be significant amounts of unused numbers under the annual limit. We are hoping that that proves not to be the case, through continuing efforts to utilize visa numbers. For example, during the summer months of 2020 of last summer, we did not expect the employment annual limit to be reached then, yet the extraordinary efforts of USCIS in terms of being able to process cases during the summer months, allowed the vast majority of the employment numbers to actually be utilized, so we continually monitor the situation. Again, the aggressive movement of the employment dates have been done in a manner to potentially maximize number use by making numbers available to qualified applicants.

Q: When do you expect F3 final action for the rest of the world will have a strong forward movement?

In the family third preference category, as I mentioned earlier the dates have already been advanced at an aggressive pace to maximize potential number use under this year’s annual limits. Therefore, to the extent we are not able to utilize those numbers, we will already have then “on hand” ready to go, as we move into fiscal year 2022. That is the reason I believe that at some point, the family sponsored dates in many or most preference categories are likely to be held for an extended period of time, because we will already have enough applicants “queued up” ready to go, based on the existing dates, and therefore we do not need to continue to advance those dates.

Q: What is the reasoning for progressing EB-2 India date of filing dates, especially since the date of filing table cannot be used?

As mentioned earlier, we advance the application filing dates to allow our National Visa Center to notify applicants who have petitions on file with them for processing abroad to begin assembling the required documents, so that the State Department will have visibility for such demand in the future, and so that those applicants are potentially ready to be scheduled based on the movement of the final action date at some future point. The immigration service has a different policy for determining when they will allow those application filing dates to be utilized.

Q: When you say aggressive what does that exactly mean?

I used an example in the India EB-2 preference category, for the previous two fiscal years, often the India EB-2 date was moving by a matter of days up to 1 week, maybe 2 weeks in a month. By comparison, our aggressive movement in recent months has been 3-5 to 8 months at a time. Therefore, the aggressive movement is made in an effort to make sufficient numbers available to fully utilize the annual limits. At this point, all of the EB-1 preference categories are “current” meaning there is sufficient demand for all applicants, additional numbers which will not be required in the employment first preference category, can fall down and be utilized in the EB-2 preference category. That is allowing both the China and India dates to be moving at a very rapid pace.

Q: May I know in which order the applications are processed, is it based on priority date, receipt date, or notice date?

I cannot speak to USCIS processing, but from the State Department it is based on when the applicant’s become documentarily qualified meaning that they have submitted all of the required documents to the National Visa Center, and then have been reported to the Visa Office for consideration. The cases will be processed in that order that they were originally provided to the Visa Office as being documentarily qualified.

The Kentucky Consular Center (KCC) handles all of the documents that are submitted for overseas processing of diversity visa categories. They would be processing in the order that the cases became documentarily qualified. It is my understanding that for both family and employment cases, and diversity cases – a case that was submitted in October would be scheduled for an interview before a case that only became documentarily qualified and reported to the Visa Office in March. We are taking the cases in the order that people became documentarily qualified.

Q: Do you believe that India EB-3 from 2013 will be current in 2022?

A: I do believe that an India 2013 priority date will be reached in fiscal year 2022. If you look at the application filing dates which are listed in the June visa bulletin for the employment categories, with the exception of EB-5 China, I believe all of the other application dates will be reached by the final action date by September. One example is for Vietnam EB-5 preference category, there is no application filing date. I believe there is an excellent chance the Vietnam EB-5 preference category will become current by September.

Q: In our last monthly chat, I think you had indicated that dates for processing immigrant visas for the F4 category were going to be moved, however those dates did not move this month, do you know why?

The worldwide family fourth preference date for the month of June did advance. I do not have the sheet with the May date, but I believe that the worldwide family fourth preference date advanced 2 to 3 weeks for the month of June.

*The F4 worldwide preference category advanced from November 8, 2006 in the May visa bulletin to December 8, 2006 in the June Visa Bulletin.

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