Comments by Charles Oppenheim Concerning Trends in Priority Dates, from the Washington D.C. AILA Chapter Meeting, September 22,

Charles Oppenheim is the Chief of Immigrant Visa Control and Reporting Division at the Department of State. This office issues the Visa Bulletin and updates, collects information and statistics from all consular posts for the Visa Office, projects immigrant and nonimmigrant visa applications for use in budgeting, and analyzes immigration bills to determine the potential effect on visa usage. Note that the most recent Visa Bulletin chart is always available at the website of the Law Offices of Arjun Verma. Below we have summarized his comments regarding priority dates for various visa categories over the next year.

Family-Based Immigrant Visa Updates

Mr. Oppenheim noted that family-based immigrant visa applications have declined recently. He believes that because of the bad economic climate in the U.S., many eligible individuals are deferring immigration. This could be due either to the concern that there are not enough employment prospects for would-be immigrants, or that potential sponsors are less able to pay fees and provide support because of unemployment or job security concerns. He also speculates that many potential applicants who are in the U.S. unlawfully are afraid to exit the country and try the consular process to gain status. Instead, many in this category are awaiting possible immigration reform and hoping to adjust while still in the U.S.

Overall, Mr. Oppenheim expects that priority dates in the family-based categories will continue to become more current quickly, especially for spouses and unmarried children of LPRs (Legal Permanent Residents). Specifically, he expects that the F-2A category for spouses and minor children of LPRs to be current by February 2011. During the last eighteen months, the National Visa Center (NVC) has asked hundreds of thousands of applicants in these categories to submit documentation, and the overall response has been slow. It is important to note, however, that the response rate could change, and this would alter Mr. Oppenheim’s expectations about the rapid turnover of priority dates.

Employment-Based Immigrant Visas: EB-2 and EB-3

In contrast to family-based immigrant visas, employment-based immigrant visas are still highly sought after. Mr. Oppenheim has noticed a key trend, which is that many EB-2 and EB-3 applicants are single when they apply, but by the time their priority date becomes current, they are very likely to have married and possibly have one child. Therefore, for each EB-2 or EB-3 case, generally 2.5 visas are issued. In the past, it was closer to only one visa per EB-2 or EB-3 case. As a result, many Service Centers and consular posts are requesting more employment-based visa numbers in certain categories than in the past.

Additionally, the demand for EB-2 visas has increased among Indian and Chinese applicants because more are now eligible for the EB-2 category than in years past. Mr. Oppenheim believes that the EB-3 priority dates for Indian and Chinese nationals will advance at about the same rate this year as they did last year.

Specifically, Mr. Oppenheim’s predictions in the short term include:

· EB-2 & EB-3, China: expected to move slowly over the next few months – by one or two weeks at a time for the next few Visa Bulletins.

· EB-2, India: expected to remain unchanged or to move very slowly forward (by a week or so). This is because many EB-3 Indian applicants (about 60,000 pending cases) are “porting” their priority dates into the EB-2 category.

· EB-3, India: expected to move very slowly over the next few Visa Bulletins — perhaps by one or two weeks at a time.

· EB-3, all other countries: expected to move slightly forward or to remain unchanged in the November 2010 Visa Bulletin due to the high number of applications waiting for a visa number in this category.

· E-4 Special Immigrant Religious Workers might have cut off dates by the end of 2010.

· The 3rd Preference Other Worker Category (EW) will continue to be backlogged and is expected to advance very slowly. Many of these cases are also at the District Offices, so it is difficult for Mr. Oppenheim to try to predict how soon the numbers will advance.

Additional Observations/Issues:

• There are still many cases pending at USCIS District Offices, and the actual number pending is not known by Mr. Oppenheim. The Service Centers have completed all required processing, but cases pending with the District Offices are still being processed, including many EB-3s. USCIS does not have information about the number of cases at Field Offices, the priority dates of such cases, visa categories or chargeability of the applicants. Mr. Oppenheim and others within USCIS are working on this problem.
• The audience raised a question concerning what happens when an applicant receives a welcome notice before his/her priority date is current. Mr. Oppenheim then explained the routine USCIS process regarding adjustment of status. The Service Centers request visa numbers when they process adjustments of status in advance of an applicant’s priority date becoming current. Then, when the priority date becomes current, a visa number is authorized by Mr. Oppenheim’s office, and the Service Center issues a welcome notice and orders the printing of the Resident Alien card. The approval is valid because the applicant has been assigned a visa number. Although this is the usual process, there have been instances where a welcome notice was sent but there was no requested or authorized visa number for an applicant. In this case, the Resident Alien card cannot be issued until a visa number has been requested and authorized. Therefore, it is vital that attorneys or applicants contact the USCIS if the applicant receives a welcome notice before the applicant’s priority date is current, as this may indicate such a glitch in processing. The attorney or applicant should ask USCIS to determine if a visa number has been requested and/or authorized. If the priority date is current and a visa number has not been requested, this must be done as soon as possible. If the applicant’s priority date is not current anymore, the Service Center can still assign the applicant to an unused authorized visa number.
• Other audience members noted that it is important to consider the priority date from any previously approved petition for adjustment of status for an applicant, since an earlier priority date from an approved petition can be transferred to a later immigrant petition.

According to AC21 (American Competitiveness in the 21st Century Act), EB-1 cases for Chinese and Indian nationals are not currently subject to the country quota, because of otherwise unused numbers for other countries. The normal per country limit for India and China EB-1s is about 2,800, but because of these unused numbers from other countries, 5,000 to 6,000 Indian and Chinese nationals have gained visa numbers in the EB-1 category. The rest of the unused EB-1 numbers are displaced into the EB-2 category. This has meant that about 20,000 EB-2s for Indian applicants and 6,500 EB-2s for Chinese applicants