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

Welcome back to Visalawyerblog! In this blog post we share with you an overview of the State Department’s October 2021 Q&A answer session with Charlie Oppenheim, Chief of the Immigrant Visa Control and Reporting Division of the U.S. Department of State, also known as “Chats with Charlie,” broadcasted every month on the State Department’s YouTube channel.

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

Be sure to subscribe to the State Department’s YouTube Channel and turn on your notifications so you do not miss any of these important updates.

Below are the highlights of the visa projections for October 2021.

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

The Top 9 Advance Questions Sent in By Listeners

Q: Last month, when describing the National Visa Center’s processing of cases, you mentioned a change in terminology from “documentarily qualified” to “documentarily complete.” Why the change and what’s the difference?

A: Well, the terminology means exactly the same thing. It’s my understanding that in changing it to “complete,” the National Visa Center was trying to make it very clear to the applicant that they had submitted all the required documents, that all those documents have been reviewed by the National Visa Center, and the case is considered to be “complete” and ready for the potential processing at an overseas post when an interview can be scheduled.

Q: In the September Visa Bulletin, the application dates for filing which are listed for China and India EB-3 were July 1, 2019, and March 1, 2014, respectively. But in the October Visa Bulletin, the dates for filing for China and India EB-3 were moved back to January 15, 2019, and January 8, 2014, respectively. Why did you move these two application dates backwards?

A: Each month before I’m making the determination of the final action dates and the application dates, I consult with USCIS officials and their inventory projections show that on October 1, 2021, coming up, the pending demand which both the State Department and USCIS has in the employment third preference category for applicants born in India and China will already exceed the amount of numbers that are available to applicants from those countries throughout fiscal year 2022 in the third preference category. Therefore, for that reason we made the decision to retrogress those application dates for filing to limit new applications, which we did not at the time anticipate could be processed during fiscal year 2022. But it is important to remember that as with the final action dates, we always continue to monitor the situation very carefully and that allows us to determine what if any future action will be required.

Q: In the projections of visa availability in the coming months, you mentioned that some of the retrogression of the employment final action dates could occur as early as November. Would such retrogression be in months or years?

A: At this time, I can’t really estimate how much the employment retrogressions may be or how soon they will occur. I just wanted to alert all the viewers and readers of the visa bulletin that the retrogression was a potential action. At the beginning of October, I will make a review of the amount of demand that we have in house and USCIS demand which is expected to reach us in the near future.

Again, I will monitor USCIS use of the numbers to determine when it’s going to actually be necessary for the retrogression, and should a retrogression be required, the goal is always to have them be a one-time retrogression, to minimize future use but still have the potential for forward movement at a certain point later in the year if the current level of demand were to subside and allow such movement.

Another consideration is that there could be legislative action which may impact the fiscal year 2022 annual limits and such potential action would be considered before any corrective action would be taken. The reason is that we would not want to retrogress any of the dates only to then have to advance them a short time later. But it is worth mentioning that the longer I wait to have any corrective action, if it’s eventually required, the retrogression would be more dramatic. Again, a delay in doing so may cause the ultimate retrogression to be a little bit more than it might have been if it had occurred earlier on.

Q: Why did you indicate that retrogression may be required for certain employment final action dates?

A: Under the current Immigration and Nationality guidelines for determining the annual limits, I still believe that the fiscal year 2022 employment limit will be approximately 290,000. But it is important to note that even under that sizable limit which would be the highest ever there are already more than enough applicants who have filed in the employment third preference category to use all the available numbers under that limit. This is the same reason I just mentioned in terms of having to retrogress the employment third preference application filing dates. So, again this action has been taken after a very careful review of current and likely demand in the near future.

Q: In response to a question asked during the discussion of the September Visa Bulletin, you said that you did not expect any retrogression of India EB-2 and EB-3 preference categories. Why have you changed your projection?

A: When I make the determination of the monthly final action dates and respond to questions during this event, I do so based on the best information and most comprehensive information available at the time and that’s what resulted in my comments back when we did the August broadcast. In recent weeks, my discussions with USCIS regarding the amount of worldwide employment third preference cases which are expected to be finalized by their officers in the next few months combined with the subsequent final action on cases which are filed in recent months based on movement of the dates, this required a re-evaluation of the situation with the India employment third preference category, and also as more of rest of world applicants in the EB-3 category are finalized, this would automatically mean fewer “otherwise unused numbers” which would be available for potential number use by Indian nationals.

That “otherwise unused number” use is what has allowed the India – both the second and third preference dates to advance so quickly throughout fiscal 2021. Another consideration I have to take is the fact that my overseas posts have the potential to dramatically increase their use of numbers in the coming months, as they begin to return to normal processing and those offices are going to be catching up on cases that may not have been addressed you know in the past year or so because of the pandemic consideration. This is really a perfect example of how the visa availability situation must be constantly monitored and adjustments made throughout the year.

Q: What happens with the case of an applicant who had originally filed and has a case pending in the employment second preference category, but they subsequently attempt to downgrade their case to employment third preference because of the more advantageous final action date?

A: Well, if the case action was originally initiated with USCIS at the time when the employment second preference number was available, but the final action date retrogressed before the applicant’s case could be adjusted, then the immigration service would go ahead and request an employment second preference visa authorization. Then that case would be held in our pending demand file until subsequent forward movement of the EB-2 date allowed us to authorize the visa authorization for that applicant.

If the applicant were to downgrade to EB-3 status and that was approved prior to the time the second preference number became available, then the USCIS processing office would withdraw their original EB-2 request and submit a new one which would be immediately authorized in the employment third preference category. This could be the same thing if somebody were to upgrade their case as well. Somebody could have filed originally in the third preference category, but in the intervening time they’ve become eligible for employment second preference status, they could also upgrade, and this is an event we see typically with both the India and the China employment applicants and it’s a pretty standard practice.

Q: I was one of the lucky ones to get selected for the Diversity Visa lottery program and duly submitted the required documents for KCC processing however I have yet to receive any communication from KCC regarding interview scheduling and the deadline is fast approaching. When will I be notified?

A: This is one of the many advance questions we are seeing in the submissions. The Kentucky Consular Center is scheduling cases based on the processing capacity to act on such cases at various posts. I cannot really comment on when or if certain cases may be scheduled. It may not be the case with this person’s specific situation, but this is an example of why it is very important for all applicants to act in a very timely manner in either their diversity visa or regular immigrant visa category, and not wait until there is an indication that either their rank number or their priority date is about to be reached because the cases are processed in a first-in first-out basis, so someone that became qualified earlier in the year and was not able to be scheduled would typically be scheduled first. With the diversity immigrant visa cases, they are being scheduled to the maximum capacity at post, but post-capacity situations vary from country to country.

Q: In the visa availability projections, you indicate that no movement of the family sponsored final action dates is expected in the coming months, why not?

A: I think I’ve mentioned this in past events, the family-sponsored and employment final action dates were advancing at a pretty regular pace since March 2020 until the COVID-19 issues first began to impact our processing. The reason we moved the dates was to generate sufficient demand to maximize number use the processing became possible at our post. As we enter fiscal year 2020, those movements have already generated enough demand to potentially use all available numbers at least in the early months in the family issuance targets based on the current Immigration and Nationality guidelines. What we do on a monthly basis, when determining the final action dates, is determine how many numbers under the annual limit we would like to be used for that particular month and then advance the final action dates accordingly to allow that target to be reached. But again, we already have enough demand based on the established dates to fully utilize all the numbers for the foreseeable future.

Q: I am an Indian applicant who has been in the US for the last 10 years on a legal visa and in line for a green card for the last 6 years based on my approved I-140. Why do Indian applicants like me have to wait so long while employment-based applicants from most other countries are being processed under a current preference status?

A: It’s very important to remember that the Immigration and Nationality Act guidelines apply a 7% per country limit for which visa issuance to any single country may not exceed. The applicants compete for numbers on a worldwide basis and this 7% per country limit is intended to prevent a handful of countries from potentially monopolizing virtually all the annual limitation in certain preferences by those countries. Earlier I mentioned that the India employment third preference category has been benefitting by the use of “otherwise unused numbers.” That has also allowed China and India employment-first preference applicants to benefit and be processed on a current basis and the amount of Indian and Chinese applicants therefore far exceeds the per country limits so they are benefitting greatly, but this was Congress’ intent by allowing the fall across numbers if the numbers were going to be otherwise unused so that we could maximize number use. Right now, I can tell you that the India first, second, and third preference categories have far exceeded what the normal per country annual limit would be, so those applicants are deriving a great benefit and because there would be “otherwise unused numbers” under the respective employment first, second, and third preference annual limits.

Live Chat Audience Questions

Q: For those who are documentarily qualified isn’t there something called expedite on the F4 worldwide category and if so, what are the options?

A: No. There may be an “expedite” of a case because the applicant is about to age-out or there are extenuating circumstances, but only if the applicant’s priority date is within the applicable final action date. Otherwise, no action can be taken. Somebody can’t say for instance well I have this special issue which requires you to process my case that does not happen. The final action dates are basically a line in the sand which only applicants with a priority date earlier than that date can be processed and the reason in part being that virtually anybody could come up with a reason why their specific case should be expedited, and it wouldn’t be fair for my case to be expedited ahead of the other person’s because I came up with a better story or whatever. Again, everybody is treated equally by the use of the final action dates.

Q: What about Haitian petitions that were documentarily qualified this year?

A: I’m assuming the question is in relation to the earthquake and other issues. It depends on post-processing capacity. I could not comment on that. The situation in which the Embassy is having to deal with numerous issues and doing their best in all areas for both American citizens and processing immigrant visas and non-immigrant visas. The best thing I could advise is to consult on the travel.state.gov webpage for the U.S. Embassy information for Haiti in Port-au-Prince to see what they may have posted in terms of what their processing ability is at this time.

Q: Will China EB-3 advance this fiscal year?

A: As I mentioned in the visa availability comments. In fact, I’ll read it directly, retrogression of the China employment third preference date could occur as early as November. Again, if and when a retrogression is required, it is hoped that that retrogression would be a one-time retrogression and that potentially if and when demand were to subside and allow it to do so, we would then advance the China employment third preference final action date, but at this time I would not assume that that would be possible for the foreseeable future if a retrogression occurred.

Q: When can we expect a normal interview process as before the pandemic?

A: If you’re talking about overseas processing, again please check the Embassy specific webpage or Consular webpage of the post that is processing your case for the most recent information. We still have to deal with host country guidelines in terms of what can be done in terms of interviews, in terms of people coming into the Embassy or Consulate, et cetera. This would be a post-by-post process. In terms of processing times in the United States by USCIS, you should contact their webpage for any information regarding what their processing is at this time.

Q: What happened to the 150,000-spillover number? Will it be added to the November Visa Bulletin?

A: Well, the 150,000 expected fall across of unused family sponsored numbers is added to the normal 140,000 employment limit which is a minimum, and that is resulting in the 290,000-employment limit which I mentioned earlier. So, nothing happened to them. They are being taken into consideration in terms of everything that will be done based on the current Immigration and Nationality Act guidelines when we are making the determination of the fiscal 2022 dates. Again, based on prior movement of the employment final action dates, we already have sufficient numbers to use all available visa numbers for the foreseeable future.

Q: What is causing the retrogression for EB-3?

A: Again, the amount of – and I will give a specific example – the amount of Indian third preference applicants who filed last October and November is almost enough to use the entire worldwide employment third preference annual limit. Therefore, and because of the 7% per country limits I mentioned, India will be limited to the amount of numbers they can use and that is likely to require the retrogression. It’s very important to remember that during October and November of last year, the amount of applicants which were filing was so sizable that it did require the retrogression of the India third-preference application filing date from January 1, 2015, back to January 1, 2014 and that was done based on the unexpectedly high amount of filings in a very very short period of time. For the rest of world applicants, there were also sizable filings of those applicants as well. Processing of such cases has been steadily progressing primarily through the second half of the year and greatly expanded during the summer months. The immigration service is now processing anywhere from seven to eight thousand cases a month which is an extraordinarily high amount and shows the efforts they are putting forth in order to maximize number use to the best of their ability but even so we have such a sizable pool of third preference applicants that are ready to go at some point during fiscal year 2022.

Q: What about the November visa bulletin F3 visa category movement?

A: On the worldwide family dates, nobody should expect any type of movement before January. I do not, at this time, based on the information available, I do not expect any movement of the family sponsored worldwide dates for 3 to 6 months and potentially longer than 6 months. Again, we have such sufficient demand that based on the already established dates, we will fully utilize all available numbers.

Q: What are your projections for DV 2022 numbers advancement? Can we expect case numbers to proceed more quickly this year given low number use in fiscal year 2021?

A: The rank cutoff dates for DV 2022 applicants will continue to advance at a regular pace probably at a pace consistent with the movement of fiscal year 2021. They may be accelerated somewhat if overseas posts indicate that they have processing capacity. I can state though, as I mentioned earlier in relation to a DV 2021 question of asking when they might be scheduled, the amount of DV 2022 applicants who are acting on their case in a timely manner by submitting the required documentation is extremely low. Therefore, if applicants are interested in pursuing action on any immigrant visa case, whether it’s a diversity, family, or employment case, they need to submit the required documentation in a very timely manner, because it does take time to process that information and once it’s processed, it is deemed that the case is “documentarily complete.” Then that information is reported on a monthly basis to my office for consideration in the determination of the coming months either diversity visa rank cut-offs or the immigrant visa final action dates.

Again, I cannot stress enough how important it is to act in a timely manner. In regard to the DV 2021 applicants, the response rate was extremely low in terms of the overall amount of applicants who were notified versus the amount of applicants who actually submitted the information requested in a timely manner to be considered for appointment scheduling. Those that were selected for the DV 2021 program, the response rate I would say was extremely low for whatever reason. We’ve already announced the November rank cut-offs we do so for the Diversity Visas at a faster pace in terms of making a determination. People need to respond quickly to potentially be processed.

Q: Why not do Zoom interviews when it seems to work for local and judicial proceedings in the United States?

A: I cannot comment directly on that other than I believe we are legally mandated to do a personal interview but again that is legal question which I am not qualified to answer.

Q: When will the Mumbai Consulate start processing immigrant visa interviews for the F2A category?

A: This is a post-specific question. Please refer to the Mumbai Consulate’s webpage for information regarding visa services being offered by the post at the current time.

Q: Do you think that the EB-3 India final action date could reach March 2014 in fiscal year 2022?

A: I would not expect that, and you should be pleasantly surprised if it does. As I stated, in item (f) of the visa bulletin you will find the visa availability projections for the coming months meaning through January. We will try to publish this type of information maybe again in the January visa bulletin if possible if the available information at the time makes it possible to do so. Again, I would rely on this information that is published in this visa bulletin or what you hear discussed in this event for making any determinations. I know that there’s a lot of blogs out there that talk and speculate but they do not have all the required information to do so.

As I’ve had to do with the change in my projection for the retrogression issue with India third preference last month, based on the information I had I did not believe there would be a need to have any retrogression of the India third preference category. Subsequent information which is always changing has made it necessary to potentially retrogress that date so again I would only rely on the information you are seeing in the Visa Bulletin or this event. If we see changes coming about or if suddenly something were to happen and the projections change, we always try to put the information in the Visa bulletin to give advance notice to everybody so they can plan ahead because we know this is extremely important for your future lives. You need to do planning so we try to provide information when it is available, in advance so you can plan for any issues such as this potential retrogression that has already been announced.

Q: A lot of Indian applicants are eligible for both EB2 and EB3. Can you provide estimates for demand considered together so that people don’t need to jump lines unnecessarily?

A: I can’t do so because I don’t receive information in terms of the amount of applicants say that are downgrading or upgrading to a specific category. The reason being, that information really wouldn’t be too relevant to my decision making because I don’t know how long it would take for such action to occur. For example, knowing that there’s a lot of applicants downgrading to – say to a third preference category – say third preference category, downgrading to Philippines third preference, I wouldn’t want to retrogress the Philippine third preference category date on the assumption that those applicants are going to be downgraded in the near future. It would be better to wait because the approval of the downgrade may not occur so I would not want to have taken an action which have been otherwise unnecessary.

Q: Could you inform us when you expect any forward movement on the worldwide F4 final action date?

A: As the visa bulletin says do not expect any type of worldwide movement of the family dates through January. I actually believe there will be no movement for 6 months or longer at this time.

Q: For advancing the dates, why did you not consider processing speed of USCIS but for retrogression you are considering the processing speed of the Consulates?

A: I know the amount of demand that is pending at our Consulates for example Mumbai, how many potential third preference cases that they have to process in the coming months if they were to resume processing on cases. So, I have to consider that somewhat, but it is not a huge concern, but I do know that it would add to the demand that I already know that is out there for the USCIS offices so Mumbai coming back online is only going to accentuate the problem with visa availability for India third preference applicants.

In terms of moving the dates forward, I think you’ve answered your own question. If USCIS is not able to process, say for example employment cases at the rate you would expect or like, then moving the dates at a faster pace is not going to make any difference. If we had moved the final action dates at a faster pace, although it would not have resulted in more number use at the time, it could have resulted in applicants say assembling documentation or doing things like that, which then in the meantime if there would come a retrogression or corrective action, the retrogression would negate their efforts in assembling documentation, etcetera.

Again, based on the fact that we are going to potentially have to retrogress the dates, it does show that the dates were advanced at a pace sufficient to utilize all available numbers if there had been the potential to do so. We cannot control the conditions in terms of staffing, availability of officers either at posts overseas or USCIS offices, to be able to process cases under these extremely trying COVID-19 conditions which is an issue that has never been experienced before, and to some extent accentuates problems that may have already been in place because of staffing issues etcetera. I can say that even before this pandemic hit that all our Consular offices abroad were already working at peak capacity. I would have to assume that USCIS offices were also already working at peak capacity.

Q: What does it mean to be documentarily qualified for an EB downgrade? Is there a checklist?

A: I am not familiar with the exact downgrade process. The immigration service has certain required information for the downgrade process, and once that is supplied and verified that the person meets the criteria, then either the downgrade or upgrade would occur but that would be a question best sent to USCIS for them to respond to in terms of what they require to be documentarily qualified. I can say that on the State Department side, if an applicant is notified to begin assembling certain documentation, they are provided with a specific list of documents that they need to assemble and submit, and once those documents are submitted and verified, then the person would be considered documentarily complete.

Conclusion

Want to know more about the Visa Bulletin for this month? Subscribe to our YouTube Channel to watch attorney Jacob Sapochnick’s analysis of each month’s Visa Bulletin. Be sure to check out our helpful links below.

Helpful Links

Questions? If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

JOIN OUR NEW FACEBOOK GROUP

Need more immigration updates? We have created a new facebook group to address the impact of the new executive order and other changing developments related to COVID-19. Follow us there.

For other COVID 19 related immigration updates please visit our Immigration and COVID-19 Resource Center here.