November 2021 Visa Bulletin Projections and Beyond — Visa Lawyer Blog — October 28, 2021

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Welcome back to Visalawyerblog! In this blog post we share with you an overview of the State Department’s November 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. It is with sad news that we announce that Mr. Charlie Oppenheim will soon be retiring from his position after 43 years as Chief of the Immigrant Visa Control division at the State Department. You will be greatly missed Charlie!

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 November 2021.


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



The Top 4 Advance Questions Sent in By Listeners


Q: Last month you said there was a 7% per country limit and seemed to defend the policy which I believe is a discriminatory rule. Why?

A: It’s a good question. I mentioned the 7% per country limit because we have been receiving numerous questions asking specifically why the India employment third preference category was not receiving more numbers, and because I felt that many listeners are not familiar with the intricacies of the Immigration and Nationality Act. The decisions which I’ve always made in the determination of the dates are based on the legally mandated guidelines in the INA, and they’re not arbitrary decisions on my part. Although Congress allows me to make discretionary decisions based on reasonable estimates which I’ve always done and typically in the applicants favor. I cannot legally make a decision once it is no longer reasonable to make estimates indicating for example that India would be entitled to using more numbers. For example, early last year I made the determination that the worldwide employment third preference number use would be insufficient to use all the numbers under the annual limit. At that point, I began advancing the India employment third preference and the China employment third preference dates at a very rapid pace. Although the employment third preference limit for fiscal 2021 was approximately 5200 numbers, the actions I took in advancing the India date allowed over 15,000 Indian employment third preference applicants to receive visas during fiscal year 2021.

Q: As late as August you’ve been saying you did not expect any retrogression of fiscal year 2022 final action or application filing dates. Then during last month’s YouTube event you said that the potential retrogressions announced in the October Visa Bulletin were based on discussions with USCIS during their inventory. Shouldn’t you have known about the inventory totals long ago?

A: Yes. The inventory totals for all the employment categories were known long ago. But it’s important to remember the only retrogressions that have occurred are with the India and China employment third preference categories. The “no retrogression” comments that I made earlier in the year had been based on the expectation that despite immigration doing their best to fully utilize numbers during fiscal year 2021, that they wouldn’t be able to sustain that level of effort as we entered fiscal year 2022. But then in late August, early September, when I was discussing their staffing situation with USCIS officials, they indicated that they believed that their processing efforts would be sustained at a very high level for the foreseeable future and because of that, countries which have not fully utilized their employment third preference limitation could potentially need numbers. Therefore, it was necessary to retrogress the dates for both China and India to keep number use within the overall employment third preference limit.

I’ve prepared a PowerPoint to help make it easier visually for people to understand the situation which is going to impact the fiscal 2022 employment based numerical control issues. In the first slide, we will show the estimated fiscal 2022 employment limits for each preference category.

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The next slide shows the amount of demand that was already with USCIS and overseas when we made the determination of the final action dates for October. As you can see, the employment third preference annual limit is only estimated to be 80,080, yet in October we already had over 92,000 applicants. Because of that, we knew that there was going to be an issue with availability of employment third preference numbers during the course of the year.

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The next slide shows the estimated per-country limit for the employment third preference category, and I am using India as an example since that is one of the countries where the final action date retrogressed for November.

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The next slide shows that the limit for any country for the third preference would be 5,605. In October, we already had over 44,000, Indian applicants who had priority dates within the October final action dates.

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5,605 versus the 44,000, this is the reason it was necessary to retrogress the India third preference final action date to control number use within the allowable annual limits based on the Immigration and Nationality Act guidelines.

In this next slide this shows the amount of applicants, again I am using China and India as an example since those are the two countries which face retrogressions for November. As you can see, the annual limit for fiscal year 2021 was 18,360. China employment number use was in excess of 22,000, and India employment number use was in excess of 77,000. So, this clearly shows that the actions taken were to maximize number use, not only within the worldwide limits, but within the China and India employment limits.

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The next side is going to show how we make a determination of otherwise unused numbers. The Immigration and Nationality Act allows us to make a decision at some point during the year that there may be otherwise unused numbers under the annual limit that we can provide to countries which have already reached their per country limit. So, again, using the third preference example, the annual limit is 80,080, and the per country limit for the third preference category would be 5,605.

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In the next slide, I can already know that both China and India will use all the 5,605 numbers allowable under the per country limit, so I subtract those numbers from the 80,080 annual limit. At this time, I am estimating that all other countries will use an additional 55,000 numbers. Again, this is an estimate. So, when I subtract out those three figures from the 80,080 annual limit, I find that there is only going to be 13,870 “otherwise unused numbers.” We can then allow those numbers to be utilized by countries which have reached their per country limit, and such number use is done strictly in priority date order.

So, applicants who have the earliest dates, regardless of what country they were born in, they are allowed to make use of those numbers. We will continue to monitor these estimates throughout the year and make the necessary adjustments. If it is determined that rest of world numbers for all other countries is going to be less than 55,000, then that would mean that there is going to be additional numbers that can be provided primarily for India third preference applicants. If we find that the processing of all other countries is going to use more numbers, again that would reduce the amount of numbers potentially available for India and China. Hopefully this gives viewers a better understanding of why certain actions were taken and give some visibility in terms of what happened in terms of number use for fiscal year 2021.

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Q: I understand that there continues to be some uncertainty with what the fiscal year 2022 limits might be based on potential legislative efforts. That being said, do you have any information regarding what fiscal year 2022 family and employment annual limits will be?

A: Yes, the family annual limit will remain at 226,000. It has been at that level for almost two decades, and without legislative changes I don’t foresee any change in that annual limit. The employment annual limit for fiscal year 2022 will be approximately 280,000. I had earlier been projecting that it might be as high as 290,000, but overseas processing of family cases during the month of September utilized more of the family numbers than expected. Therefore, there were fewer numbers to fall across to employment, approximately 10,000 fewer numbers to fall across for employment use during fiscal year 2022. Again, there have been talks of legislative changes, I can say that the later in the fiscal year that any type of legislative changes are enacted, that could complicate visa availability for the remainder of the year depending on if those changes benefit or are detrimental to either the family or employment categories. We will have to wait and see what happens.


Live Chat Audience Questions


Q: Is there a country cap on spillover?

A: No. On the spillover, if there are “otherwise unused numbers,” then those numbers are provided strictly in priority date order. Historically, the Indian applicants have had the earliest priority dates, so they’ve derived the most benefit from the spillover of “otherwise unused numbers.” But again, they are made available strictly in priority date order, we don’t pick and choose which applicants will receive numbers, it’s strictly based on their priority date. This has allowed for the past year the China and India employment first preference categories to remain current because they benefitted by the use of “otherwise unused numbers” during fiscal year 2021. Currently both the India and China employment second and third preference categories are also going to potentially benefit by the use of “otherwise unused numbers.”

Q: Please talk about whether spillover was applied to EB-2 and EB-3, were there spillovers from family based to employment based in fiscal year 2022?

A: Yes, primarily China, but also India benefitted by the fall across of unused family numbers which are provided in the employment categories based on the percentages applied to each of the employment preference annual limits, so it was a big benefit to both the Chinese and Indian applicants.

Q: Are you foreseeing any retrogression possibility for EB-1 in future bulletins?

A: No. At this time, barring any type of legislative action, I do not foresee any type of reason to need to apply either a China or an Indian employment first preference final action date in the foreseeable future, so they will stay current.

Q: Will there be retrogression for the Philippines family-based categories?

A: No.  With the family categories, I do not see any forward movement for the foreseeable future. As I’ve said in the past, with the possible exception of Mexico or the Philippines, those family dates might be able to advance in certain categories, but otherwise for all other countries I do not foresee any type of forward movement of family dates. In terms of any retrogression of the Philippines employment dates, I do not foresee that either.

Q: How soon will dates progress from November – a month or two at a time?

A: In the employment second preference category for both China and India, I expect that for December, the dates will be probably advancing a couple of months. Then movement will likely continue at a possibly slower pace, as we enter the new calendar year while we see the impact of the forward movement of those dates during the first quarter. Again, I would expect several months of movement in both the India and China employment second preference category for December.

Q: What will happen if our dates are current only until November 1 and retrogress?

A: At that point the case would be held, and the case could only move to final action date once the final action date has progressed beyond the applicant’s priority date. I can tell you what is very beneficial, that the USCIS offices will continue to process cases that they have pending and when they process the case, they will look at it and then submit a request to our Visa Office, and when they do so they always do this – in the interview if one is required—they submit a request to our office, and they will receive an immediate response saying either that the authorization of the request for adjustment of status has been granted, and if so they can take that piece of paper put it in the applicant’s case file, ship it off, and get the “green card” produced.

Since the applicant began processing, if the final action date has retrogressed and a visa number is no longer available, then the officer will receive a response saying that the case will be put into pending status, but that case is then held in our office until the final action date advances beyond the date, and at that time our office would automatically send a response to the requesting USCIS office indicating that that applicant is ready for final action on their case and that the adjustment can occur. So, it’s kind of the best of both worlds, the applicant can continue to get their case worked on, we will maintain, and we will watch out for when the number comes available and then we notify USCIS that so and so’s case is now ready for final action.

Q: Will employment EB-3 India move to middle of 2013 or December of 2013 in fiscal year 2022. Can we expect EB-3 September 2014 current in 2021 or 2022?

A: I would say no. I’m just quickly looking into my dates. If you look at the application filing dates which are listed in the Visa Bulletin for the month of November, those application filing dates are where we expect the final action dates to be in approximately 9 months from now. So, you notice that the India third preference date, both the final action and the application filing dates are almost the same, and the reason for that is we already had enough India third preference applicants who had filed last year and are currently in the USCIS processing pipeline, therefore it was not necessary to have any new filings when we weren’t sure that such new filings could be processed during the coming year. Again, the application filing dates will be looked at on a monthly basis and if it is determined that more numbers would become available, then we would advance those application filing dates.

Q: Do you have any prediction for China EB-3?

A: I would not expect any movement of either the China EB-3 or India EB-3 for the foreseeable future until we see the rate at which USCIS is processing cases and using the available numbers. I would not plan on seeing any forward movement in either of those categories and you could be pleasantly surprised if there were such movement.

Q: Can you please update us on F2B’s, why are those still stuck in time?

A: With the family dates, they were advanced throughout fiscal year 2021 at a pace consistent with what we had been doing, had our overseas posts been able to process cases. The overseas posts used approximately 95% of all the family sponsored numbers, and the USCIS offices used approximately 85% of the employment annual limit. In the hope that overseas processing could resume at some point during fiscal year 2021, the final action dates for the family categories were advanced at a steady pace so that we would have sufficient demand and applicants ready to go once our posts were opening up and beginning processing again. That did not happen as soon as we had hoped, but the posts are rapidly returning to processing and we already have enough demand that is eligible to be scheduled for interviews within the existing dates for most of the family categories to fully utilize the fiscal year 2022 family limit and that is why I’ve said that I do not foresee any movement of the family dates, again I sound like a record with the exception of Philippines and Mexico possibly, the rest of the world do not expect any forward movement of those dates I would say until the early summer if then.

Q: How many decades does it take for the year 2018 to become current? They didn’t specify a class.

A: I’m guessing since they’re talking about decades—I’m taking a quick look—they may be talking about the family fourth preference category, that’s where we have some on the family side that have the biggest backlog. I will give you an example. The annual limit in the family sponsored fourth preference category is 65,000, and there are over 2 million applicants who have filed in the family fourth preference category who are attempting to make use of those 65,000 numbers on an annual basis. That is the reason why the family fourth preference date advances so slowly and there is the larger gap between when the petition was filed to accord the applicant’s status and what the final action dates are. Again, the limit being 65,000, and there’s over 2 million people competing for those numbers. It’s kind of a supply and demand issue as with many cases.

Q: I am documentarily completed, but I don’t have an available visa. Can I have an interview before the Visa Bulletin is current for my priority date?

A: No. The Visa Bulletin dates are kind of a line in the sand which cannot be crossed. For an applicant to be eligible to be scheduled for an interview at an overseas post (1) their case has to be documentarily complete and (2) it would need to have been reported to our office prior to our making the determination of the final action dates for the upcoming month, and the other factor involved is post processing capacity. Again, many of our posts are slowly returning to normal operational status and they too are having to dig out of a backlog of cases that have become pent up since Coronavirus hit in March of 2020. So, it is going to take them some time to recover from this situation we are facing for the past 18 plus months.

Q: Is the family category interview scheduled on the basis of priority date or documentarily qualified date?

A: It’s kind of a first-in first-out so if person A had submitted all their documents and become documentarily complete back in say for example in April, and person B had just submitted their documents last week, person A would be scheduled before person B since they had become documentarily complete before person A (even if person B had an earlier priority date). Interviews are scheduled on a first-in first-out basis, depending on when a case becomes documentarily complete and visa availability.

Q: What could the Visa Bulletin movement look like by the end of the fiscal year 2022?

A: With the family dates, I do not foresee much change, barring a legislative effort, until sometime next summer, and the movements at that time may be in an effort to generate additional demand as we enter into fiscal year 2023. The other possibility for movement in the family dates is if posts are able to come back online to full processing capacity at a faster pace than I currently expect.

On the employment categories, for the employment first preference category, I expect that to remain current for the remainder of the year. Employment second preference worldwide will remain current. The India and China employment second preference dates should slowly advance throughout the year, and they could slow up or stop at some point if demand becomes excessive. The one thing we would need to watch for in both the employment second and employment third preference category for China, is if it gets to a point where people are upgrading their petition status—they may have originally filed an employment third preference, but have subsequently become entitled to status in the employment second preference, and if the China and India employment second preference dates become more advantageous, more people may upgrade, and that could have an impact on the availability of numbers in the second preference category and at some point require corrective action.

Hopefully we would see that in time to provide advance notice. An attempt is always made to provide at least 1-2 months advance notice in the Visa Bulletin. If we foresee something happening that could negatively impact processing, we try to put that information out as early as possible because we know it impacts the lives of many applicants and they need to make plans. So, again, if we foresaw potentially negative changes coming in either the China or India second preference dates, the Visa Bulletin would include a notice of those changes as soon as possible to give people fair warning.

Q: Is there any age relief for those applicants who have aged out during COVID-19?

A: There is the Child Status Protection Act ruling. I do not know enough about that process to offer any advice. I believe there may be information on our travel.state.gov website which addresses the Child Status Protection Act and applicant’s entitlement to such status, and how the rules would apply to such individuals.

Q: Chart B Dates for Filing shows (c) for i5 and r5, but the National Visa Center has been emailing i5 and r5 applicants, please do not submit any additional fees or forms to the National Visa Center. Please explain.

A: The chart B that is the dates for filing. The National Visa Center would have notified the vast majority of applicants who were eligible both in that i5 and r5 category, they would have typically notified applicants long ago before that category became expired effective June 30th of this year. So, they would prefer not to have any new people sending in things and they’re trying to monitor the situation, because the category has not yet been extended and we have not received any indication of when they would occur. We would prefer that people not continue to submit documentation and fees that may not be acted upon in a timely manner. Again, this is to try to prevent applicants from taking unnecessary steps that may not be necessary at least in the near future. Follow the guidelines that are sent by the National Visa Center.

Q: How do you calculate visa allotment? Can we check the website?

A: No. There isn’t anything on the website. Basically, and I think I’ve used this example before, but you can think of the allotment of numbers on a monthly basis as your household budget. You’ve got X amount of money to use during say the month of November, and you know your paycheck for the month of November is going to be X, so you have to kind of figure out where your money is going to go to cover your various bills and that’s what we do with the determination of the final action dates.

We will establish a target of how many numbers we want to have issued in a given month. We will also calculate, in order to issue that many numbers, actually how many additional numbers need to be provided, because a certain amount of applicants will either be refused or will not show up to their interviews.

If for example we wanted to use 1,000 numbers, we may need to establish a final action date which would allow the allocation of 1,200 numbers. 1,200 applicants would come in for an interview for example during the month of November, we would expect that 200 of them would either be refused or would not show up to their interviews. The result would be that we would have the 1,000 visas issued that we wanted to be issued in a given month and those “monthly targets” will allow the annual limits to be fully utilized. There are several other variables that are involved but that’s kind of a very simplified version.

The other thing is we typically try to weigh the allocations and movement of the final action dates more heavily during the first 9 months of the fiscal year, so that we can have a better chance of fully utilizing numbers and not have to sprint to a finish. We would much rather prefer to have a slow stroll to the finish line versus having to be sprinting all the way. Often the movements you will see during the first 9 months of the year, in normal times they should not be anticipated to continue throughout the fiscal year. Also, getting the applicants in earlier in the year allows them if they are refused for some reason, sufficient time to return to overcome a refusal in order to be a utilized number during that fiscal year.

Q: If the spillover and unused visas are recaptured, do you foresee retrogression of EB-1, EB-2, or EB-3?

A: I’m assuming you’re talking about recapture of numbers from earlier years and added to the family and/or employment categories. That would increase visa availability and would most definitely allow the categories that are currently current they would remain current, and it would also allow those categories which have a final action date, it would allow those dates to begin advancing. How quickly would depend on how many extra numbers are provided.

Q: You mentioned that Philippines family preference will advance in the next couple of months, does that mean that all categories will advance in the Philippines?

A: No, I didn’t say they will, I said that they could. Certain preferences for Mexico and the Philippines may advance during the coming months in order to generate additional demand but there is no guarantee to that. Those are the only two countries where I foresee potential movement during the coming 9 months on the family side.

Q: How will inter-filing from EB-3 and EB-2 have an impact on the movement for India?

A: Yes, as I mentioned earlier, if we see a significant upgrade of third preference applicants, upgrading to second preference status, that will reduce the availability of employment second preference numbers and limit the future movement of both the China and India second preference categories. At this point it is too early to know when that might happen and to what extent. The one other thing which could benefit the second preference category is the availability of unused employment first preference numbers, because if it becomes apparent that there are going to be additional unused employment first preference numbers, they can fall down and then be utilized in the employment second preference category.

Q: Why is F2B is not allocated the per country limit especially Dominican Republic that is getting more than 7 percent?

A: As mentioned in earlier responses, the per country limit is 7% and that is congressionally mandated in the Immigration and Nationality Act, and it was put in that Act as a way to prevent a handful of countries from monopolizing the use of all numbers. The Dominican Republic applicants are “competing” for numbers on a worldwide basis. Such applicants are covered under the first column of dates in the family categories where it says all chargeability areas.

Just to give you an example, we’ve got probably 190 countries in the world, and for example the per country limit for second preference—just as an arbitrary number say it was 2,000—we can’t have all 190 countries fully utilizing all the per country limit, otherwise we would exceed the annual limit. Again, there are not sufficient numbers under the annual limit to allow each country to reach its per country limit in normal situations. The only time that will happen is for example on the family category where you see an earlier final action date for Mexico and Philippines, that date is to keep them within their overall family F2B per country limits. Again, the dates are established to control number use within both the per country limit and the overall annual limits.

Q: If the case is transferred and the date retrogresses, will the application still be processed by the U.S. Consulates or Embassies abroad?

A: If it’s transferred from USCIS to an overseas post, then that post would be responsible for the processing unless told otherwise. I’m not sure if that answers the question, I’m a little unclear on it. Whether the Consular post has it or USCIS has it they will maintain the case until the priority date becomes current and a visa becomes available and at that point the interview would be scheduled so that final action could occur.

Q: Can you please tell me if the current prediction is based on employment visa number 140,000 or 280,000 annual limit for fiscal year 2022?

A: Everything that has been done so far and will be done for December is based on a 280,000-employment annual limit. If there were legislative changes, and that 280,000 limit is based on the current Immigration and Nationality Act guidelines which indicate that any unused family numbers from fiscal year 2021 can fall across and be added to the employment limit for fiscal year 2022. So, there were approximately 140,000 unused family sponsored numbers in fiscal year 2021, those numbers are then added to the minimum 140,000 employment limit for fiscal year 2022, totaling 280,000. If by any chance there would be legislative actions which would impact that fall across provision, then the amount of employment numbers would be drastically reduced, and it could have an extremely negative impact. If we didn’t have the 280,000 limit and we were subject to a 140,000 limit, there would be final action dates established for all the categories that currently have a current status. Again, every decision that’s being made now is based on the current legally mandated guidelines.

Q: Do you expect a retrogression in the F2A category in the coming months?

A: The short answer is no. I do not see a change in the current status for F2A in the foreseeable future. I can say that if posts were to suddenly return to full operational status and begin utilizing F2A numbers at a much higher pace than normal, it may require a final action date to be imposed at some point in the future. I do not foresee that happening. I think that the current amount of F2A demand will be slowly reduced throughout the course of the year and by that slow reduction would reduce or eliminate completely any need for a date, at least during fiscal year 2022.

Q: Why was EB-2 progressed when EB-3 demand was more?

A: The reason is there are separate annual limitations for each of the preference categories. So, the employment second preference dates were advanced based on availability of numbers under that annual limit, and the third preference annual limit the dates were also advanced there under that annual limit. So, it’s two different distinct pots of numbers where the applicants in those categories are competing for them. If by any chance, there had been insufficient demand in the employment second preference category to utilize all the numbers (which that hasn’t been the case for years), but if it were to occur, then those numbers could potentially fall down for third preference.

To give you an example of the way the numbers flow, any unused employment first preference numbers can fall to employment second preference for use. If there are any unused employment second preference numbers, they can fall down to employment third preference for use. If there are any employment third preference numbers unused, they fall up for use in the employment first preference category. In the employment fourth preference category, if we had insufficient demand to fully utilize all the fourth preference numbers, any unused numbers there and the same situation in any unused employment fifth preference numbers, they fall up to the employment first preference categories.

This kind of trickle up and down situation is intended to maximize number use and it happens in both the family and in the employment categories in terms of the movement of the numbers.

Q: What happens if the primary EB-3 is approved but the spouse is pending, and the date retrogresses?

A: That I cannot answer. That would be a question you would need to ask to whichever office is processing your case. I will defer that question. If the case is with post and the visa is approved, then you should reach out to the Consular section that approved the visa for questions related to the spouse and any follow to join family members.

Q: Will the 80,000 unused visa numbers from last year be considered for this year?

A: Actually, there were only about 62,000 unused employment numbers. The increased processing efforts of USCIS ultimately resulted in the retrogression of the India and China third preference dates for this year. Their efforts allowed more numbers to be used than we expected. Those unused 62,000 employment numbers, they fall across for use in the determination of the family sponsored annual limit for fiscal year 2022. But because of the computations involved in the determination of the family numbers, those 62,000 unused employment numbers are essentially lost in the process, so they do not come into play, whereas the unused family numbers the way the law is written, they are just directly added to the employment annual limit.


Conclusion


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