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Practice Pointer: Observations on the October 2020 Visa Bulletin

Introduction

AILA’s DOS Liaison Committee has been unable to interview Charlie Oppenheim this month, and therefore in lieu of a Check-In with Charlie column, the DOS Liaison Committee provides the following observations and practice considerations regarding the October 2020 Visa Bulletin.

The October 2020 Visa Bulletin is historic in many respects. Most critically, is USCIS’s decision to accept employment-based (EB) I-485 filings based on dates for filing. This decision opens the floodgates to massive filings at a scale that has not been witnessed since the summer of 2007 when all categories abruptly became current.

Why are the employment-based categories advancing so rapidly?

As a result of consular services being reduced to “mission critical” activities due to the pandemic, issuance of Presidential Proclamation 10014 (PP 10014), which suspends the entry of certain immigrants, and other country-specific travel bans, an unprecedented low number of family-based (FB) immigrant visas were issued in fiscal year (FY) 2020.

The continued impact of the pandemic and travel bans has resulted in the unprecedented situation of zero movement in October 2020 in the final action dates for the family-based preference categories. Per the October 2020 bulletin, this is due to the fact that movement in the family-based final action dates during the last six months, coupled with the suspension of routine visa processing at consular posts, have resulted in “enough accumulated demand to fully utilize the numbers normally made available through the first quarter of the fiscal year.”

Per INA 201(d)(1)(B), these unused family-based numbers have been added to the FY2021 employment-based immigrant visa allocation, resulting in an all-time high employment-based allocation of approximately 261,500 immigrant visas. To put that into perspective, recent Check-In with Charlie columns reported that until now, the highest EB allocation was 158,000 a few years ago, and the second highest EB allocation (FY2020) was 156,000.

Employment-based preference categories

The big news in the October 2020 Visa Bulletin is the rapid advancement in the final action dates and dates for filing of all of the EB categories that were not already current, with the exception of the BE-5 categories. The decision to advance these dates was made by DOS in consultation with the “USCIS Office of Policy and Strategy to accommodate processing plans for USCIS Offices during the coming fiscal year and to maximize number use within the FY 2021 annual limits.”

Why doesn’t EB-5 also benefit from the advancement?

Consistent with the FB preference categories, EB-5 immigrant visas are also predominately processed at consular posts abroad. Therefore, the same considerations discussed above that impacted processing and subsequently prevented the final action dates from advancing presumably apply to EB-5 as well.

Furthermore, unless reauthorized by Congress, the EB-5 program (I5 and R5) category will sunset on September 30, 2020. Therefore, the final action date for this category is listed as “U” for unavailable for October. Should the program be reauthorized, this category will return to current, except for EB-5 China which will hold at August 15, 2015 and EB-5 Vietnam which will hold at August 1, 2017.

Movement in the other Employment-based Categories

EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) remains current in October. The final action date for both EB-1 China and EB-1 India advances 3 months to June 1, 2018, but the dates for filing, which are being honored by USCIS, is listed as September 1, 2020.

EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) remains current in October. EB-2 China’s final action date advances two months to March 1, 2016. The date listed on the Dates for Filing chart is October 1, 2016. EB-2 India’s final action date, which has historically held or moved up to a few days at a time, leaps forward almost two months to September 1, 2009, with USCIS honoring the date for filing of May 15, 2011.

EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) (including EB-3 Other Workers) becomes current in October 2020. EB-3 China’s final action date advances 4.5 months to July 1, 2017, with a USCIS-honored date for filing of June 1, 2018. EB-3 China Other Workers’ final action date advances 4 months to December 1, 2008 with a USCIS-honored date for filing of October 1, 2008. EB-3 India’s (and EB-3 India Other Workers’) final action date advances 3 months to January 15, 2010, with a USCIS-honored date for filing of January 1, 2015.

As with the EB-5 program, the EB-4 Certain Religious Workers category will sunset on September 30, 2020 unless reauthorized by Congress, and numbers are therefore listed as unavailable. If reauthorized, this category will automatically become current for all countries with the exception of El Salvador, Guatemala and Honduras, which would be subject to an August 1, 2017 final action date and a USCIS-honored date for filing of February 1, 2018; Mexico would be subject to a September 1, 2018 final action date, but would be current for filingunder the Dates for Filing chart.

For all EB-4 categories other than Certain Religious Workers, EB-4 Worldwide (including China, India, Philippines, and Vietnam) remains current in October. EB-4 El Salvador Guatemala and Honduras’s final action date advances 4 months to August 1, 2017 and has a USCIS-honored date for filing of February 1, 2018. EB-4 Mexico’s final action date advances 2.5 months to September 1, 2018 but becomes current for the purposes of filing adjustment of status applications.

How to advise your clients?

The October 2020 Visa Bulletin presents an unprecedented opportunity for clients who have been waiting years to file adjustment of status applications to finally do so. While this window of opportunity is open, it is critical that members properly identify clients who are eligible to fileand how quickly you may need to file Aside from reviewing the Visa Bulletin dates for filing for each client’s EB preference category, it is important to also take into consideration the following tips in order to ensure that all clients eligible to file are properly identified.

TIP #1: Don’t forget the downgrades!

It is critical that AILA members who have clients with PERM-based EB-2 petitions analyze their eligibility to file I-485 under the dates for filing listed under both the EB-2 and EB-3 categories. A client with an approved or pending EB-2 I-140 petition can file a “new” EB-3 petition to take advantage of the adjustment of status filing window. This practice is commonly referred to as filing a “downgrade” petition. While this has traditionally been available for China categories, the disparity in the dates for filing in the EB-2 and EB-3 categories for both China and India are feasible in October 2020.

Specifically, the date for filing for EB-2 China is October 1, 2016, while the date for filing for EB-3 China is June 1, 2018. Therefore, AILA members whose EB-2 China clients have a priority date between October 1, 2016 and May 31, 2018 may still file AOS as long as they do so concurrently with a “new” EB-3 I-140 petition. Since this will be a concurrent filing, Form I-485 Supplement J is not required.

Similarly, the date for filing for EB-2 India is May 15, 2011, while the date for filing for EB-3 India is January 1, 2015. Therefore, AILA members whose EB-2 India clients have a priority date between May 15, 2011 and December 31, 2014 may still file AOS as long as they do so concurrently with a “new” EB-3 I-140 petition. As with the China example above, since this will be a concurrent filing, Form I-485 Supplement J is not required.

Members should refer to AILA’s practice resource on filing downgrade I-140 petitions for additional guidance. (AILA InfoNet Doc. No. 13120548. (Posted 12/16/13). AILA members should note that AILA is currently updating this resource and expects an update to be posted within the coming days.

TIP #2: Don’t forget alternate chargeability!

Bear in mind that in some cases, the country of birth of the principal applicant’s spouse may allow the family to be alternately chargeable to the spouse’s country of birth. (See 9 FAM 42.12 N2 and N3.) When this applies, if the category applicable to the spouse’s country of birth would render the application current, it could potentially allow filing in circumstances where it would not otherwise be possible based on the principal applicant’s country of birth.

What can we expect in the coming months?

In the October Visa Bulletin, DOS included projections for the potential rate of monthly advancement through January 2021 for final action dates. These projections are of course subject to fluctuations in applicant demand and other related variables. It should also be noted that when determining the Dates for Filing, DOS and USCIS set a date in October where they think the Final Action Dates will be at the end of the Fiscal Year.

With regard to the family-based preference categories, DOS anticipates that the F1 category would either stay the same or advance up to three weeks per month. F2A is expected to remain current. F2B is expected to either remain the same or advance at a rate of up to three weeks per month. F3 is expected to either remain the same or advance at a rate of up to two weeks per month; and F4 is expected to either remain the same or advance at a rate of up to one week per month.

EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) is expected to remain current for the next few months, with rapid forward movement likely for EB-1 China and EB-1 India.

Similarly, EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) is expected to remain current for the next few months, with rapid forward movement (most likely at the pace of months rather than weeks) likely for EB-2 China and EB-2 India.

EB-3 Worldwide, EB-3 Mexico and EB-3 Philippines (and EB-3 Worldwide Other Workers) are also expected to be current, with rapid forward movement expected in EB-3 China and EB-3 India. Steady forward movement is anticipated for EB-3 China Other Workers.

EB-4 is expected to be current for most countries, with the exception of EB-4 El Salvador, Guatemala and Honduras and EB-4 Mexico, which are expected to experience steady forward movement.

Assuming the EB-5 program is reauthorized, the final action date for EB-5 China is expected to continue to hold, while there should be limited forward movement in the final action date for EB-5 Vietnam. All other countries should remain current for the foreseeable future.

How long will the filing window remain open?

As noted in the October Visa Bulletin and as alluded to in the Department of State Liaison Committee’s October Visa Bulletin insights resource the projections are a reflection of known data as of the specific moment in time. (AILA InfoNet Doc. No. 20091810. (Posted 9/18/2020). A variety of factors contribute to the determination of the final action dates and dates for filing each month. Primarily, the supply of visas relative to the demand is critical. However, as we have seen in the family-based and EB-5 contexts, processing capacity can also have a profound impact on whether a category advances. While we know there is an all-time high supply of EB numbers, and while we believe that DOS and USCIS are using the best information available with regard to what they expect the demand for those numbers will be, their data is based on assumptions and statistics that may be imperfect.

One significant question on the minds of many members and stakeholders is whether USCIS will continue to honor the dates for filing beyond October 2020. Unfortunately, DOS and USCIS cannot guarantee or definitively predict that the dates for filing could be used beyond the month for which they are published. This is because the movement is based on public usage which cannot be predicted. USCIS and DOS cannot know at the end of September 2020 how quickly eligible applicants will file, nor can they know with complete accuracy how many applicants will actually be eligible to apply in the categories that are current.

If USCIS receives significantly more demand than anticipated as a result of “opening the floodgates” to filings, there is always the possibility of a correction in the form of retrogressing the final action dates and dates for filing. Some factors which may potentially distort the agencies’ perception of outstanding demand may include a failure to consider the potential impact of I-140 petition downgrade filings, principals having much larger families file than usual (since each dependent takes up a visa number), and a lack of visibility to pending I-140 data. For AILA members with high volume employment-based practices, and who may still be operating at a skeletal in-office staff due to the pandemic, there is a concern that it may not be feasible to file all applications before the end of October 2020. While historically the Visa Bulletin was issued around the 10th of the month, it has of recently been issued around the 18th or 19th of each month, with the October 2020 Visa Bulletin being the latest release on record—the 24th. USCIS does not announce which chart it will be using for accepting adjustment of status applications until after DOS issues the Visa Bulletin. For this reason, members are advised that if a retrogression is announced, it will likely allow only a few days of reaction time before taking effect.

Information to consider

No one has a crystal ball, but the following may be helpful in understanding what factors go into how the final action dates and dates for filing are determined and whether USCIS will honor the dates for filing in a particular month:

  • USCIS’s determination of whether to accept adjustment of status applications based upon the dates for filing as opposed to the final action dates, is based on a mathematical formula – if there are more visas available than demand, then USCIS will utilize the Dates for Filing chart.
  • DOS sets the October Dates for Filing based on where it believes the Final Action Dates will be no later than September of that fiscal year.
  • Many of the categories that are presently current have been current for some time now, so there may not be significant demand at this time in those categories. Moreover, it is hard to predict the demand in current categories.
  • The number of Indians/Chinese across all categories and including their derivative(s)who are eligible according under the October 2020 Visa Bulletin is far less than the total number of visas currently available, so there would still be visas available beyond their usage.
  • Anyone filing on or after October 13, 2020 must include the I-944, Declaration of Self-Sufficiency, where required, which will impede the ability to quickly file.
  • Historically, USCIS has used the Dates for Filing Charts to accept adjustment of status applications through December/January of the new fiscal year, even when there were significantly fewer available visas to exhaust.
  • Availability in EB-3 may be impacted by the number of “downgrade” requests USCIS receives.
  • DOS makes determinations of the upcoming month’s final action dates and dates for filing are still made around the 9th of the month, despite the fact that the Visa Bulletin is issued much later in the month. The late issuance is attributable to a new approval process, as opposed to a change in the timing of the date calculations. Given some of the factors outlined above, it is more likely that the bulk of the EB adjustment of status filings will be received closer to the end of October 2020. This would make it more likely that the dates will continue to advance in November 2020 consistent with DOS’s projections. However, since USCIS does not make its determination as to whether to honor the dates for filing until the end of the month, if massive volume is received in October, that might influence USCIS’s decision whether to utilize the Dates for Filing chart.

Based on these factors, it is probable that USCIS will continue using the Dates for Filing chart beyond October 2020. However, there are no guarantees of what the Visa Bulletin will bring, nor which set of dates USCIS will honor for filing in November 2020. Charlie has reminded AILA on numerous occasions that applicants should always file as soon as the window of opportunity is available because no one—not even he—can guarantee when that window will close. Thus, although there is a strong possibility that the unprecedented supply of visas will keep the filing window open into November 2020 and beyond, it is prudent to file all applications as soon as it is possible to do so.

Courtesy - https://www.aila.org/

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