Priority Date Predictions for FY13

As readers were advised in our NewsBrief, Visa Bulletin Predictions for EB2 (25.Oct.2012), several Murthy Law Firm attorneys attended a meeting regarding U.S. Department of State (DOS) Visa Bulletin information and predictions for fiscal year (FY) 2013. The meeting was with Charles Oppenheim, the Chief of the DOS Immigrant Visa Control and Reporting Division on October 24, 2012 in Washington DC. An outline follows, which shares Mr. Oppenheim’s expectations and analysis for all employment-based (EB) categories for FY13.

Employment-Based, First Preference (EB1) Likely to Remain Current for All

The DOS expects that the EB1 category will remain current for all of FY13 regardless of the country of chargeability. The usage of EB1 numbers is important with respect to predictions of movement in EB2 for India and China. Unused EB1 numbers are made available to oversubscribed countries in EB2. Thus, the volume of usage of EB1 numbers is a primary factor in the movement of the EB2 India and China cutoff dates.

In FY11, demand for EB1 numbers dropped by more than 25,000. U.S. Citizenship and Immigration Services (USCIS) expected a similar pattern in FY12, and advised the DOS accordingly. This led the DOS to expect 12,000 to 15,000 excess EB1 numbers, which the DOS factored in when they advanced the EB2 India and China cutoff dates rapidly in FY12. The excess numbers did not materialize, due to an upswing in EB1 demand in FY12. This is important in FY13, as the DOS expects the high demand for EB1 to continue in FY13. This impacts the amount of excess numbers that will be available to shift into EB2 during FY13.

Employment-Based, Fifth Preference (EB5) Retrogression Likely for China

The next category addressed for MurthyDotCom readers is the employment-based, fifth preference (EB5). The categories are discussed out of sequential order, as the use of EB5 numbers directly affects the expectations for EB2 India and China, similar to EB1.

The request for EB5 numbers hit an all-time high in FY12. Much of this demand comes from Chinese investors, increasing demand for EB5 visa numbers from those chargeable to mainland China by more than 150 percent. The demand from other countries showed a 40 percent increase in FY12, continuing a trend that began in 2007 and expected to continue in FY13.

The growing demand in EB5 from those chargeable to China means that the DOS anticipates having to set an EB5 China cutoff date sometime in the second half of FY13. This is necessary to preserve enough numbers for those chargeable to other countries.

Unused EB5 numbers shift up to EB1 to avoid any waste. As explained, excess in EB1 shifts and rolls to EB2 for oversubscribed countries, like India and China. In earlier years, EB5 was underutilized. This created an excess that ultimately benefited EB2 India and China. In FY12, there was no EB5 excess. This trend is expected to continue in FY13.

Employment-Based, Second Preference (EB2): All Chargeability Areas Except Those Listed

The EB2 category for All Chargeability Areas Except Those Listed or Rest of the World (ROW) is expected to remain current for the remainder of FY13. The DOS is seeing a noticeable number of EB2 worldwide cases with priority dates in 2010 and 2011, in addition to more recent cases. There is a significant trend toward “upgrading” through EB3-to-EB2 cases within the EB2 ROW category.

Employment-Based, Second Preference (EB2): India

The DOS has received more than 20,000 EB2 India cases from USCIS that are awaiting issuance of visa numbers. Under the current system, once the USCIS reviews a case and finds it appropriate for approval, the USCIS makes an automated request to the DOS for a visa number. If no number is available, the request is held by the DOS, awaiting action once a visa number for the particular case and priority date becomes available. These cases are referred to as preadjudicated.

As explained in the MurthyDotCom NewsBrief cited above, DOS does not anticipate being able to advance the EB2 India cutoff date any time soon. However, there is an expectation that there will be some forward movement during FY13. The estimate given as a best case scenario is that, by the end of FY13, EB2 India’s cutoff date will advance to a new cutoff date, set at some point in early 2008.

Employment-Based, Second Preference (EB2): China

The cutoff dates for EB2 China are expected to advance a few weeks each month during FY13. There is a potential for somewhat greater advancement in this category. No estimate was given for a cutoff date expected to be reached by the end of the FY13 for China.

Excess Visa Numbers Estimated for EB2 India and China

Overall, the expectations are that EB2 India and China will benefit from some excess visa numbers shifting from EB1 and EB2 ROW. However, the volume of such excess is expected to be even less in FY13 than it was in FY12. In FY12, EB2 India and China each received approximately 19,000 visa numbers. The vast majority of these were due to shifting excess numbers into EB2 India and China. At this time, the DOS estimates that a total of 13,000 visa numbers will be available to EB2 India and China in FY13. This is subject to change – either up or down – depending upon the usage in the other categories, as explained here.

Impact of EB3-to-EB2 “Upgrade” Filings on EB2 PD Movement

One of the difficulties faced by the DOS in making predictions of the forward movement of priority dates (PDs) is a lack of transparency in the cases commonly referred to as EB3-to-EB2 upgrades. There are many such requests, but the DOS cannot see those cases and include them in their demand figures when they are filed. The DOS is only alerted to these cases when the USCIS completes a case adjudication and requests a visa number from the DOS. Each month, the DOS reports receiving thousands of these requests connected to upgraded cases. Since EB3 is oversubscribed, regardless of country of chargeability, many of these cases are filed by those in EB3 ROW.

The reason this is important is that excess visa numbers in EB2 ROW are made available to EB2 India and China. This is another important factor that determines movement in EB2 India and China. The increase in cases shifting from EB3 to EB2 ROW increases demand in that category. The result is fewer excess numbers that can be shifted out of EB2 ROW to EB2 India and China.

Employment-Based, Third Preference (EB3)

The EB3 ROW category is projected to move three to four weeks per month. The same is true of EB3 Mexico. China is expected to move as much as six weeks per month in this category. India continues to be extremely backlogged. The predictions for EB3 India are only one to two weeks of advancement per month. The EB3 “other worker” category should follow the trends of the general EB3 category.

As explained, the DOS sees huge numbers of EB3 upgrade cases. Out of the thousands of such cases each month, several hundred are coming from the EB3 India category.

Conclusion

Movement of cutoff dates is complex, with many of the categories interconnected due to the rules for movement of excess numbers from one employment-based category to another. The DOS faces difficulties attempting to predict demand for visa numbers, due to a lack of transparency between the DOS and the USCIS, despite various improvements that have been implemented over the years. We will continue to update MurthyDotCom readers regarding visa bulletin developments and predictions.

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