Anticipating Indian Priority Dates through May 2019 Visa Bulletin - EB3 will continue to be better than EB2; and EB2 may only move 1 Week!

1/19/2019: Each month the U.S. Department of State ("DOS") publishes the Visa Bulletin. The Visa Bulletin regulates the issuance of immigrant visas at U.S. consulates worldwide, and provides guidance to the U.S. Citizenship and Immigration Service ("USCIS") on the processing of I-485 adjustment of status applications.

Charles Oppenheim is the official at DOS responsible for determining the "cut-off dates" on the Visa Bulletin. For many years now the cut-off dates have been very important (and frustrating!) for employment-based immigrants from India and China, particularly those waiting in the EB-2 (2nd Preference) and EB-3 (3rd Preference) categories. The frustration comes because there is considerable more demand than supply. The Visa Bulletin cut-off dates exist because Congress has only allocated a limited number of immigrant visas/green cards annually and Mr. Oppenheim has the responsibility of regulating/allocating the immigrant visas so that the U.S. government uses up all of the available green cards annually but not a single one more. And there is simply huge demand and limited supply. The wait times for India and China are particularly severe because of "per country" limits in the law that do not take into consideration national populations so there are basically the same number of immigrant visas for people born in India as there are for people born in Iceland (a country of very low population as compared to India). The policy basis of "per country" limits is diversity. The lawmakers - way back when - wanted to ensure that people from all over the world were able to immigrate and that all the immigration did not come only from a limited number of countries. The current result of this policy preference for diversity has created unanticipated (and frankly absurd) wait times for people born in India, and to a lesser extent China.

Recently, Mr. Oppenheim has started providing regular Q&A with the American Immigration Lawyers Association ("AILA") to help lawyers (and the public) understand cut-off date/priority date movement. This Q&A is known as "Check-in with Charlie". In the most recent Check-in with Charlie, published January 18, 2019, Mr. Oppenheim provides guidance on his projections on where the cut-off dates are going through May 2019. Mr. Oppenheim is followed by EB immigration lawyers like Jerome Powell (current Chairman of the Federal Reserve) is followed by Wall Street. But similar to Powell, Mr. Oppenheim is 'data dependent'. So he is giving his projections now based on the demand he is seeing now in the system. It is worth noting that he was unable to have a recent liaison with the USCIS ombudsman's office due to the partial government shutdown but he did indicate he is able to access data related to immigrant visa and I-485 approvals. But things could happen between now and May that would change his estimates - what follows is his best guesses based on the situation now.

Because these cut-off dates are most severe for people born in India, and because my own client base (and linkedin network!) involves a lot of people born in India, this article focuses on Mr. Oppenheim's projections for people born in India.

Further complicating the Visa Bulletin is the fact that in the last couple years Mr. Oppenheim has started publishing two sets of dates each month. He had a benevolent intent and hoped to facilitate more visibility and potentially provide more opportunity for people to proceed on their I-485 final stage adjustment of status applications; but USCIS had a strange reaction to the two sets of dates and the reality now is that the two sets of dates have just created more confusion and frustration. The discussion below relates to what are known as the FINAL ACTION DATES - that is, the dates that control when immigrant visas and I-485 applications can be approved. (The other set of dates has some potential relevance but mainly it exists to confuse and frustrate everyone.)

For the India EB-1 (First Preference), Mr. Oppenheim anticipates movement of 1 month**, so that means possible movement from Feb 8, 2017 (the Final Action Date listed on the Feb 2019 Visa Bulletin) to March 8, 2017 - by the May 2019 Visa Bulletin.

For the India EB-2 (Second Preference), Mr. Oppenheim anticipates movement of JUST 1 WEEK** - meaning that EB-2 India may move from April 6, 2009 (the Final Action Date listed on the Feb 2019 Visa Bulletin) to April 13, 2009 - by the May 2019 Visa Bulletin. JUST ONE WEEK!! ARGH.

For the India EB-3 (Third Preference), Mr. Oppenheim anticipates movement of 3 months - meaning that EB-3 India may move from April 22, 2009** (the Final Action Date listed on the Feb 2019 Visa Bulletin) to July 22, 2009 - by the May 2019 Visa Bulletin.

[**Note/Edit: The above estimates are conservative estimates based on the Q&A guidance, as the guidance suggests that the movement could be more. For simplicity, I have made a conservative estimate of where the movement will be in 3 months, but the more optimistic view is that the above movement will be seen EACH MONTH for the next 3 months. So the most optimistic estimate, according to Oppenheim, is that for each month, EB-3 India will move forward 3 months, meaning that in May 2019, per the most optimistic estimate, EB-3 India will have moved up 9 months to Jan 22, 2010. Given the recent history of the visa bulletin (and my own dismal predictions), I have focused on a conservative estimate per Oppenheim's comments- but of course, hopefully a more optimistic estimate will occur.]

The Feb 2019 Visa Bulletin is the first time in history when the FINAL ACTION Cut-Off Date for EB-3 India is more favorable than the FINAL ACTION Date for EB-2 India, and in the January 19, 2019, Check-in with Charlie, Mr. Oppenheim is telling the public this 'delta' will increase:

"As of now, however, the anticipated forward movement through May 2019 for EB-2 India is up to one week in contrast to the 'up to three months' movement expected in EB-3 India."

Why is EB-3 India surging ahead?

"This situation has been created by the current overall low level of EB-3 Worldwide demand, which in turn is likely to make additional EB-3 numbers available for India."

So this news should facilitate more downgrade filings, a process discussed in an earlier article of mine (that is super popular!) - linked here:

https://www.dhirubhai.net/pulse/how-have-your-cake-eb-2-mechanics-downgrading-i-140-approval-webber/

The Visa Bulletin can be found here:

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-february-2019.html

The USCIS adjustment of status (I-485) filing charts can be found here (you should note that for Feb 2019, USCIS is using the "Final Action Dates" after a few months of using 'the other chart'): https://www.uscis.gov/visabulletininfo

I think most people reading this are EB-2 Indians and it is definitely depressing news. Just don't shoot the messenger!