Mr. Oppenheim, Chief of the Visa Control and Reporting Division at the Department of State, announced at the AILA Midwest Regional Conference on March 16 that EB-2 priority dates for India and China could potentially retrogress all the way back to August 2007! Any this may happen during either the May or June 2012 Visa Bulletin.

His prediction, always considered trustworthy given his position, caused widespread frustration among EB-2 filers. It seemed particularly disappointing because the category’s cutoff dates have been advancing rapidly for months. However, many people were kind of expecting the bad news, since Mr. Oppenheim did warn about potential retrogression at some point this year. So it was his other prediction that appeared to be hurting: No EB1 spillover to EB2 this year.

A visa “spill-over” means that unused visa numbers for a given EB preference are re-allocated to the next category. In recent years, spillover from EB-1 has helped the EB-2 category tremendously. But Mr. Oppenheim believes that all EB-1 visa numbers will be consumed within the category this year. On top of that, due to the government’s heavy promotion of investor visas, the EB-5 category will likely exhaust their allotment as well.

So all of these have painted a bleak future for EB-2 for the remainder of FY-2012. Coincidentally, there is now a petition proposing a thorough investigation into EB-1C, reserved for multinational managers or executives. A group has set up a petition to Congress: Stop EB1 C ABUSE and FRAUDULENT filing. Here is what the petition says:

We would like to appraise you of a particular area of United States Immigration law that has a huge potential of fraud and misrepresentation along with being unfairly biased in favor of the people who choose to abuse it. We are talking about the Employment-based first preference category EB1C (International Managers). As you are already probably aware, the requirements for eligibility in that category is just a year of overseas managerial experience in a company that conducts business in both US and abroad. We are sure you will agree that compared to the fair and stringent requirements of EB1A (persons of exceptional ability) and EB1B (outstanding researchers), this is a rather simple qualification to prove. Moreover it opens up avenues for fraud and misrepresentation particularly by overseas companies doing business in USA to unfairly take advantage of this simple requirement.

In some cases, a journey from L1 visa to EB1C green card does appear to be much shorter, compared to those who studied in the U.S. for a degree and then had to wait many years for their EB2 or EB3 green cards. On the other hand, there are indeed people who worked really hard overseas, climbed up the ranks, and eventually got transferred to the States as managers. So I hope the petition, if fruitful, will help block the loopholes where (staffing) companies simply assign manager titles to people for the purpose of gaining an advantage in immigration, rather than closing the door for legitimate candidates.

Visa bulletins are used to regulate the allocation of visa numbers. When demand goes up, cutoff dates may have to be moved back to prevent accidental over-consumption of visas. On the other hand, if demand level is low and there is a possibility of having unused visa numbers in the end, cutoff dates will be advanced accordingly to avoid wasting any. So there is still a chance that BE-2 will move forward again, and if it does, it will probably happen around July time frame.  In addition, if there is visa spill-over, meaning that unused EB-1 visa numbers are being passed down to EB-2, we might see another jump in the Summer.

Below is China EB2 visa bulletin movement so far for fiscal year 2012 (India EB2 is the same for this period):

All EB-1 categories, as well as all EB-2 other than India and China, remain current. This means that anyone who belongs to one of these classifications is eligible to file new I-485, and if they already did, their applications are eligible for approval.

All EB-3 categories are still heavily backlogged, while moving at an extremely slow pace from month to month. Here is an comparison for April:

Interestingly, as of late Friday night, the Department of State hasn’t updated their Website to show the April 2012 Visa Bulletin. However, the PDF version was posted earlier today and the voice recording (202-663-1541) has been updated with new cutoff dates for April. So the visa bulletin is indeed official, but it appears that someone at the Visa Office simply forgot to update the visa bulletin page before leaving for the weekend.

Although visa number consumption is carefully regulated by the Department of State, there are occasional hiccups, or even big mess up sometimes, like the one in 2007. You can spot those patterns and sudden changes easily with the new table format. Visa allocation is dependent on demand data, which always fluctuates making it difficult to predict next month’s bulletin. But over a longer period of time the overall trend stays relatively stable. The retrogression tracker has a graph showing this effect for EB2 and EB3 only, but the new data tables cover all categories and all countries. Here is an example for India EB2′s Cutoff Dates:

In just three months, EB2 waiting time has theoretically been cut by half, from 4 to 2.08 years. See our retrogression tracker here.

DOS cited the same reason for such rapid movement of EB2: Low level of new I-485 filings:

Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

All EB3 categories continued their slow pace in February. But what is more frustrating for applicants is DOS’ prediction for the coming months on EB3: Up to one month of movement.

All categories that are “Current” will remain so in February, and will likely stay this way for the foreseeable future

The reason for such rapid movement of EB2, as explained by DOS, is that the level of new filings in the past couple of months have not been as high as expected. Advancing the cutoff date aggressively would allow more people to become eligible for I-485 or consular processing. Once enough applications have been received by USCIS and NVC, cut-off dates will stop advancing or even begin to retrogress. In fact, a fast movement like this makes it more likely that retrogress will happen, as compared to a slower but more steady pace.

Although DOS’ intention is to spur new applications, January 2012 visa bulletin does allow more time for older cases (especially those with PDs around July 2007) to be processed. Many of them have been current for a few months, but may be stuck for some reason. So overall, the January bulletin brings nothing but good news for EB2, even though some of you will have to spend your Christmas holidays getting all the documents ready.

The China and India Employment Second preference cut-off date has been advanced at a rapid rate in recent months. As previously noted, this action was intended to generate significant levels of new filings for adjustment of status at U.S. Citizenship and Immigration Services (USCIS) offices. USCIS has reported that the rate of new filings is currently far below that which they had anticipated, prompting an even more aggressive movement of the cut-off date for January and possibly beyond. While this action greatly increases the potential for an eventual retrogression of the cut-off at some point during the year, it also provides the best opportunity to utilize all numbers available under the annual limit. – DOS

Below is the what our EB2 visa bulletin tracker shows (declining curve means improving retrogression):

All EB3 categories, unfortunately, continued their crawling pace to advance just a few days to a couple of weeks.

It is important to note that although DOS is the official authority over visa number allotment, their prediction is still an estimate. The demand for visa numbers will always fluctuate, and as a result, the Visa Office must adjust cut-off dates accordingly.

Below is DOS’ visa bulletin prediction for the coming months:

• EB1: Current
• EB2:
  • Worldwide: Current
  • EB2 China and India: The current cut-off date is approaching the most favorable date previously reached for applicants from China and India. The rapid forward movement is intended to generate demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which currently accounts for over 85% of all Employment-based number use. Once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-offs at some point during the year is a distinct possibility.
  • Mexico: Current
  • Philippines: Current
• EB3:
  • Worldwide: up to one month
  • China: one to three weeks
  • India: up to two weeks
  • Mexico: up to one month
  • Philippines: up to one month
• EB4: Current
• EB5: Current
• Family-Sponsored:
  • F1: three to six weeks
  • F2A:three to six weeks
  • F2B:one to two weeks
  • F3: one to two weeks
  • F4: up to one month

But people keep asking questions. They are apparently not satisfied with the official DOS predictions on cut-off dates movement. So I’m going to take another stab. The only difference is that instead of using the Visa Office’s visa usage report, I’ll just rely on my own tools. If you’ve been to our visa bulletin page, you know that we keep track of cut-off date progress on a chart. Over the past two years, the EB2 curves (2011 and 2010) look a lot like each other. EB3 categories are all over the place, but for India and China, the lines are nearly flat. So here it goes:

August 2011 Visa Bulletin Prediction:
EB2-India: June 8, 2007
EB2-China: June 8, 2007
EB3-India: May 15, 2002
EB3-China: August 1, 2004
EB3-ROW: November 1, 2005

In place of a legal disclaimer, I would like to include a quote from Scott Adams, author of the Dilbert series, during an interview with BNET’s Geoffrey James:

James: What method do you use to forecast trends?
Adams: There are, in general, two ways to predict the future. For example, you can use horoscopes, tea leaves, tarot cards, crystal ball, and so forth. Collectively, these are known as the “nutty methods.” Or you can put well-researched facts into sophisticated computer models, more commonly referred to as “a complete waste of time.” While all these approaches have their advantages, I find it’s a lot easier and economical to simply make stuff up.

This is the first time for either category’s cut-off date to cross into 2007 since, well, the July 2007 visa bulletin fiasco. So after four years, people with 2007 priority dates are finally seeing light at the end of the tunnel.

Not everyone will immediately see I-485 approvals when their priority date becomes current. In fact it is pretty rare. USCIS processes eligible I-485 applications based on receiving date, security checks, and other factors, so it is not unusual for them to keep working on cases that are already current. However, since USCIS has pre-adjudicated so many I-485 applications, we do expect to see a large number of approval notices throughout July. You may want to check the green card tracker to see how many are still ahead of you, as of June 2011.

July 2011 Visa Bulletin also brings good news to people who missed the July 2007 VB madness, since this will the first time many of them are eligible to file I-485s.

Keep in mind that when the cutoff date is March 8, it means only applicants whose priority date is March 7 or earlier are eligible to file I-485 or receive green card approvals.

Below is an image showing EB2 retrogression for the last four year. We are beginning to see a trend now, which repeats year over year. The Y-axis is the number of years an EB2 applicant has to wait for a given month of visa bulletin publication:

Unfortunately Employment Third Preference (EB3) is still lingering. Other than Mexico, all other EB3 categories moved just a little bit. There is no doubt that many EB3 applicants would consider upgrading their cases to EB2. It remains to be seen if this becomes a trend, and if yes, what effect it will have on the overall visa bulletin development.

The image below reflects this sad reality graphically: EB-3 retrogression is generally worsening over the past four years. For India EB3, you are looking at 9-year wait as of July 2011, which means only people who started their green card journey 9 years ago are now eligible for approval. China EB3 isn’t much better, with a 7-year linger despite a relatively small number of people in queue (3811 total).  All other countries and regions are hovering around 5 – 6 years.

The visa bulletin cutoff dates can change quickly, as shown by Mexico EB3. This can be caused by several factors such as visa number shuffling, people switching to EB2, and even family-based immigrant number consumption. As a result, EB3 retrogression for certain countries might improve at some point as well. However, without a major immigration reform, the heavy EB3 backlog is unlikely to shrink much any time soon.

The Visa Office provided more clarification, especially with EB3 upgrading to EB2:

Since October there has been heavy demand by applicants “upgrading” their status from Employment Third to Employment Second preference. The rapid forward movement of the India Employment Second preference cut-off date in May had the potential to greatly increase such demand. Therefore, the determination of the June cut-off dates was delayed in order to monitor this demand. At this time the amount of new “upgrade” demand has been minimal; this has allowed the Employment Second preference cut-off date governing the use of the Section 202(a)(5) numbers to advance significantly for June. The same cut-off date will apply to both China and India Employment Second preference. Note that under INA Section 203(e) all of the “otherwise unused” numbers must be provided strictly in priority date order regardless of the applicant’s chargeability.

Keep in mind that the cut-off dates for India and China employment-based second preference may stop advancing or even retrogress by the end of fiscal year 2011 (September 30), if there is a significant increase in demand for visa numbers.

Other EB2 categories, including Worldwide, Mexico and the Philippines remain “Current” for June.

Most EB3 categories advanced slightly for June, although Mexico EB3 moved forward by 3 months. We truly feel for the folks who are stuck in EB3, and the road ahead certainly appears to be a long one.

“Add Bache1or’s, Master’s or Doctorate Degrees to your resume in just a few weeks and open avenues to promotion and better jobs!”

It went on to say something like:

Regardless of your age, sex, marital status, or location, you can receive a degree in your desired field. All you need is sufficient work, military, or life experience and you are already on your way to an instant degree in your relevant field.

Earn a recognized University Degree based on work or life experience within weeks!
Get your desired degree on the basis of your Prior Knowledge and Professional Experience.

I don’t believe the Department of State would ever allow such an obvious scam to be distributed to their email subscribers. So now the question is, has their system been hacked?

I highly recommend that you don’t click on the link or reply to the email if you received a similar one. Let’s wait to hear from the Visa Office before proceeding.

EB2 categories are obvious beneficiaries, with EB2 India expected to consume more of the “fall-down” visa numbers. The reason is that unused visas must be re-allocated based on priority date. Since India is more backlogged than China, visa numbers must go to India nationals with the earliest priority dates first. When the two countries reach similar cut-off dates, any remaining visa numbers will be split between China and India EB2 applicants.

This trend can be seen on our visa bulletin graph. In the past few years, India EB2 usually lags China, until July or August when EB1 numbers become available. The curve for EB2 India would drop faster, and eventually meet EB2 China. Then both would advance, albeit slowly, and start to separate in a new fiscal year with India becoming further retrogressed.

Unfortunately, EB3 categories, which are facing worse retrogression than EB2, will not be able to benefit from the unused EB1 visa numbers.

It is unclear how fast EB2 will advance in coming months. Hopefully at least six months before the end of FY2011. We’ll find out soon, as the May visa bulletin should be published around April 10th or so, less than two weeks away. For those of you who are getting close, good luck!

Well, the offical April VB should arrive within a couple days, so we will see if this calculation is accurate. If it is, we will tell you how we come up with that number in a follow-up post.

This exercise is more fun than useful, because it doesn’t help you much by knowing the cutoff dates just a bit earlier. And there is no guarantee that DOS will continue to publish their data every month. But it is a good way to understand how the process works, and it has certainly helped me.

Employment-Based First, Fourth and Fifth Preferences
For January 2010, all EB1, EB4 and EB5 categories remain current.

Employment-Based Second Preferences (EB-2)
All EB2 countries other than India and China are still current in January. For India-born applicants, the cutoff date is still 01/22/2005 – no change from the December 2009 visa bulletin. Applicants from mainland China saw their PD cut-off date advancing just one month, to 05/01/2005.

Employment-Based Third Preferences (EB-3)
The situation is not much better for EB-3; although all countries of chargeability moved forward, it was a 1 or 2-month advance across the board. For January, EB3 Worldwide, Philippines and China stand at 08/01/2002, while Mexico is one month behind at 07/01/2002, and India trailing by one year at 06/22/2001.

EB-3 Other Workers category has the same PD cutoff date for all countries: 06/01/2001.

How come EB cutoff dates didn’t move in recent months?
The Department of State offered an explanation in the January Visa Bulletin: At the end of FY 2009, which ended on September 30, 2009, many EB categories were “unavailable.” So when FY-2010 visas were released during October and November, the demand was very high because of the large number of eligible I-485 cases. USCIS was also processing green card applications at a fast pace, and may have pre-adjudicated many of them, which resulted a high depletion rate of visa numbers for the first quarter.

With older cases now near completion, another batch of visa numbers are being released, which is the reason why January has started to see some forward movement.

Projections for cut-off date movement for the remainder of FY-2010
The Department of State offered some predictions on visa availabilities from now to September. These projections are helpful in many ways, but should be treated as just estimates.

• EB-1 is likely to remain current for all countries of chargeability throughout FY-2010.
• EB-2, other than India and China, is also likely to remain current.
• EB-2 China and India will continue to be oversubscribed, and may even become “unavailable” if high demand depletes available visa numbers before the end of September.However, if there are unused visa numbers from a particular category during a calendar quarter, they may be made available to China and India (or other oversubscribed counties) without regard to per-country limitation. This is usually referred to as visa “rollover” or “spill-over” in the immigration community.In case of visa rollover, the same cutoff date is applied to each country receiving the extra visa numbers. So if EB2 India is still more retrogressed than China when that occurs, more visa numbers may go to EB2 India because there are more applicants with earlier priority dates.
• EB-3 is expected to move forward but continue to have cut-off dates for all countries. For this reason it is unlikely there will be any visa numbers unused.

In summary, DOS projects the following cutoff date movement for the remainder of FY2010 (best case scenario)

Family-based visa bulletin projections
Cutoff date movement in the family preferences has been relatively fast recently and DOS expects the trend to continue for at least a few more months. The reason is that fewer applicants are proceeding with their consular processing cases, as well as the low volume of FB adjustment of status cases. However, DOS warns that the movement may slow or even stop at some point, and certain categories may retrogress further if demand picks up.