Immigration Update: Visa Bulletin Predictions for September/October 2021

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick provides an overview of the State Department’s September 2021 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 monthly YouTube broadcast, Mr. Charles Oppenheim answers many of the public’s questions regarding the upcoming Visa Bulletin and discusses what to expect in terms of the movement or retrogression of the family sponsored and employment-based preference categories in the coming months.

Want to know more about the highlights of the Q&A session? Just keep on watching!

Overview

In this blog post, we summarize some of the most interesting questions that were asked during this live Q&A session with Charlie Oppenheim, including frequently asked questions regarding unused employment-based visa numbers for fiscal year 2021 and the future of family-sponsored categories in the coming months.

Q: Are you concerned with the anticipated large amount of unused fiscal year 2021 employment-based numbers which you mentioned last month?

Charlie Oppenheim responded during the live session that the State Department is very concerned about the potential for unused employment-based numbers under the fiscal year 2021 annual limits. According to Oppenheim, this concern was one of the reasons he made the China and India employment first preference categories current back in April and engaged in very aggressive forward movement of the final action dates since that time to prevent the loss of visa numbers in the employment-based categories. Furthermore, Mr. Oppenheim pointed out that both the State and USCIS offices are doing everything in their power to maximize number use before the end of FY 2021 to avoid drastic losses.

Based on recent discussions with USCIS, Charlie Oppenheim said that the agency is on track to approve more adjustment of status applications than at any time since fiscal year 2005. He also reminded listeners to keep in mind that since March of 2020, both the State Department and USCIS offices, have been dealing with a variety of COVID-19 issues which have had a tremendous negative impact on operational status, staffing, and ability to process large amounts of immigrant visa cases. According to Mr. Oppenheim, overseas posts only began returning to some sense of normal processing in April of 2021.

Q: When I look at the chart listing the final action dates, how do I know if my case is eligible to be scheduled for an interview at the overseas post responsible for processing my case?

This is a very common question that our law office is frequently asked as well. Charlie Oppenheim pointed out that applicants must first ensure that they have submitted all the required civil documents to the National Visa Center to become “documentarily qualified,” meaning that all necessary documents and fees have been submitted to proceed with interview scheduling. Submission of all necessary documents would also need to be done in time for the case to be reported to the Visa Office as documentarily completed by the first of each month. In this case, if you are documentarily qualified and your priority date is earlier than the applicable final action date listed in the Visa Bulletin, then you would be eligible to be scheduled for an appointment for final action on your case. However, even while waiting in line to be scheduled for a visa interview after being “documentarily qualified,” applicants must still take into consideration overseas post processing capacity issues relating to the COVID-19 pandemic. The majority of posts overseas continue to have limited operational capacity; therefore, applicants should expect delays to be scheduled for a visa interview. Overseas posts must first notify the National Visa Center that they have an available slot for an interview before the National Visa Center can forward the case to the post overseas.

Q: Why hasn’t the EB-2 final action date been advancing each month?

With respect to this question, Charlie Oppenheim pointed out that the India EB-2 date has actually been advancing at a rapid pace through July, as most of the employment-based categories. He also shed light on the system by which categories advance in terms of “weekly groupings.” He stated that the movement of the various dates is subject to the amount of numbers available for use each month and the demand is often in weekly groupings. He added that the State Department may sometimes have a targeted amount of numbers they would like to make use of, but demand in the weekly grouping prevents them from advancing the date too fast. This is typically due to a high concentration of applicant demand in the India weekly groupings, that can limit the movement especially later in the fiscal year when we approach the annual limit. The same principle is applied to all the final action dates.

Q:  If we were to assume that the FY 2022 employment based annual limit will be at least as high as the FY 2021 limit, will there also be a significant amount of unused numbers as there will be this year?

Charlie’s response: That is a very hard question to answer at this point. One of the primary reasons for there being such a large amount of unused fiscal year 2021 numbers is the continued impact of the COVID-19 issues which have impacted processing. If that impact were to continue to subside during FY 2022, it can be expected that the employment number use totals will increase dramatically and will reduce any potential amount of unused numbers.

It is always important to remember that just because there are more numbers available for use, doesn’t automatically guarantee that we will be able to have a corresponding increase in number use, because a lot of things such as staffing to handle such workload have to be considered. Just because we get more numbers doesn’t mean that there are additional staffing and other resources to process such cases.

As a result, there may be some need to take some corrective action at some point such as retrogression where dates “retrogress” or move backward in time to allow more movement and adjustments. Retrogression will likely happen in fiscal year 2022 based on Charlie’s current predictions.

Q: Why can’t you advance the filing date for F2B? Family-based categories for people in the U.S. should be given equal treatment as the employment-based categories

In response to this question, Charlie stated that he has advanced all the family preference categories to a point where the amount of documentarily qualified applicants far exceeds the annual limit in each and every family category. For example, in the F2A category where the limit is approximately 87,000, the State Department has over 130,000 applicants, and the same thing in the other categories. For that reason, if for example on October 1st all posts around the world and USCIS offices were able to go back and be processing at pre-pandemic levels, the State department would have to retrogress most of the family dates within a matter of 2 to 3 months because of the demand for numbers. Therefore, applicants would be faced with retrogressions of those dates over a period of time.

The prediction is that if this type of demand persists, where the amount of documentarily qualified applicants far exceeds the annual limit in every family category, the State Department will have to retrogress most of the family categories by 2 to 4 months or even more to be able to catch up with the demand.

Conclusion

USCIS and the State Department are doing the best they can to avoid unused numbers for employment-based preference categories as we near the end of the fiscal year. Inevitably however there will be some losses. In terms of family-sponsored categories, unfortunately the demand in each and every category far exceeds the annual limit, which will likely force corrective action including retrogression of most family-based categories in fiscal year 2022.

Want to know more? Click here to read the complete transcript of Mr. Charlie Oppenheim’s Q&A session for September 2021.

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