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Cite as “AILA InfoNet Doc. No. 12012349 (posted Jun. 27, 2012)”

On Tuesday, June 19,
2012, Roberta Freedman, AILA Students & Scholars Committee member,
discussed theVisa Bulletin, visa demand in the employment preference
categories, and predictions for FY2012 and beyond with Charlie Oppenheim
of the Visa Office. Here are notes from that discussion:

2012 and 2013 News
In
October 2012 (beginning of the 2013 fiscal year), the EB-2 cut-off
dates for China-Mainland born and India, which are currently
“unavailable,” will move to August or September 2007 (China may be
slightly better). It is unlikely that the cut-off dates will move
forward at all for the first two quarters of FY2013. If they do, it will
only be if the Visa Office is convinced that there is insufficient
demand for the rest of the year. Mr. Oppenheim’s office already has
17,000 EB-2 cases for natives of India, China, and worldwide with
priority dates after January 1, 2009, pre-adjudicated. There will be a
lot of cases queued up for adjudication in October 2012, and it will
take some time to get through them.
EB-2 worldwide will be current in October 2012. 

If
USCIS approves many pending cases during the month of June, the
worldwide EB-2 category may retrogress or become unavailable for the
rest of the year.
Why did the priority dates move ahead so far and
then retrogress so drastically? USCIS encouraged Mr. Oppenheim’s office
to move the categories forward so much in January, February, and March
of 2012. USCIS reported that they had a lot of approved petitions but
they were not receiving enough I-485s. USCIS wanted the cut-off dates
moved even more in March 2012, but DOS resisted, since there already
appeared to be heavy demand. In February, the demand had already
increased 50%. In addition, USCIS said that they believed that
adjudication of EB-1 cases would be at the same rate as last fiscal
year, and this was not the case. It could be due to the fact that many
EB-1 cases had very long adjudication times with USCIS. In addition,
EB-5 usage has been higher this year. Unused EB-5 cases fall into EB-1,
and unused EB-1 cases fall into EB-2.
Applicants from China and India who filed will be waiting years for adjudication of their I-485s.
USCIS
also advised a 4-6 month timeline in the processing of I-485s, and then
they processed a lot of cases in 3 months, which increased the demand
as well for visa numbers this fiscal year.
The group of cases that
were filed in July and August of 2007, when all employment-based
categories were made “current,” were all completed by November 2011, and
at that point, Mr. Oppenheim’s office had to depend on USCIS estimates
for adjudication of cases. Mr. Oppenheim’s office had no pre-adjudicated
cases that gave him a point of reference to determine what was left or
pending.
Mr. Oppenheim’s office has been very clear that they do not like retrogression.

Going forward:

Another
problem with trying to predict the demand is that no one is keeping
statistics on EB-3-EB-2 “upgrades.” Upgrades continue to be a big
“wildcard,” as no one knows how many are being used per year and no one
is tracking it. Mr. Oppenheim confirmed his previous comments that both
cases for a person remain open (so it looks like two numbers are being
used) if a person is upgrading from EB-3 to EB-2, and only when the
green card is approved does the duplicate file number go away. At that
time, Mr. Oppenheim’s office is told by USCIS to cancel a pending EB-3
case.

Mr. Oppenheim’s
office believes that there are 10,000 to 15,000 numbers used for
upgrades every fiscal year. In March 2012, alone, 3,200 numbers were
used to approve China and India adjustments that were EB-3-EB-2
upgrades. The actual break down was 2,800 from India and 500 from China.
All of these cases had priority dates before 2007, so clearly, they
were upgrades. For example, 363 of the 2,800 EB-2 cases from India that
were approved in March 2012, had a 2005 priority date. In March 2012,
alone, over 1,000 numbers were used for applications from the worldwide
quota that had priority dates before 2010, so these were likely upgrades
as well.

USCIS previously insisted that the number of upgrade cases was insignificant.

Mr.
Oppenheim’s office tries to use 13,500 visas per quarter for all EB
cases. This office already has more than 17,000 in line for FY2013.