U.S. Department Of State Update On Priority Dates And Demand

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On June 19, 2012, Charles Oppenheim, Chief of the Immigrant Visa Control and Reporting division (Visa Office) at the U.S. Department of State (DOS), met with the American Immigration Lawyers Association (AILA) to discuss the recent EB-2 (Employment-Based, second preference) worldwide retrogression and provide an updated forecast of employment-based visa date movements for FY 2012 and beyond.

These comments and predictions are summarized below.

  • When FY 2013 begins on October 1, 2012 and new immigration visa quota numbers again become available, the EB-2 cut-off dates for China-Mainland born and India, which are currently “unavailable,” will move to August or September 2007 (the China cut-off may be slightly better). It is unlikely that the cut-off dates will advance at all for the first two quarters of FY 2013 unless the DOS’ Visa Office is convinced that there is insufficient visa demand for the rest of the year. The Visa Office has already pre-adjudicated 17,000 EB-2 cases for natives of India, China, and worldwide with priority dates after January 1, 2009. Further, there will be several cases queued up for adjudication in October 2012, and it will take some time for them to be processed.
  • EB-2 worldwide cut-off dates, which retrogressed to January 1, 2009 under the July Visa Bulletin, will be current in October 2012. However, should several pending cases be approved by the U.S. Citizenship and Immigration Services (USCIS), the worldwide EB-2 category may retrogress or even become unavailable for the rest of the year.
  • As for the reasons behind the rapid advancement and subsequent drastic retrogression of the priority dates, USCIS apparently reported that, while it had adjudicated and approved several petitions, the agency was not receiving a sufficient number of I-485 applications. USCIS wanted the cut-off dates to be moved forward even more in March 2012. Nevertheless, the DOS resisted since there already appeared to be heavy demand (in February, the demand had already increased by 50%). In addition, while USCIS stated that it believed that adjudication of EB-1 (Employment-Based, first preference) cases would be at the same rate as last fiscal year, this was not the case. Oppenheim suggested that this may have been due to the fact that many employment-based cases had prolonged adjudication times with USCIS. In addition, EB-5 (Employment-Based, fifth preference) usage has been higher this year. Unused EB-5 cases fall into EB-1, and unused EB-1 cases fall into EB-2.
  • The Visa Office confirmed that applicants from China and India who filed will be waiting years for adjudication of their I-485 applications.
  • While USCIS advised that I-485 applications would be adjudicated within a 4-6 month timeline, the agency in fact processed numerous cases in 3 months, the effect of which was to also increase the demand for visa numbers this fiscal year.
  • The group of cases that was filed in July and August of 2007, when all employment-based categories were made “current,” were all completed by November 2011. At that point, the Visa Office had to depend on USCIS estimates for adjudication of cases. The Visa Office had no pre-adjudicated cases that provided a point of reference to determine what was left or pending.

Future Forecasts

According to the Visa Office, the ability to predict demand is impeded by the fact that there are no statistics on EB-3 (Employment-Based, third preference) to EB-2 “upgrades.” If a foreign national is upgrading from EB-3 to EB-2, both cases for that individual remain open (so it appears that two numbers are being used). It is only upon the approval of the green card that the duplicate file number ceases to exist and the Visa Office is advised by USCIS to cancel a pending EB-3 case. Purportedly, there are 10,000 to 15,000 numbers used for upgrades every fiscal year according to the Visa Office, although USCIS previously insisted that the number of upgrade cases was insignificant.

As indicated by Oppenheim, the Visa Office tries to use 13,500 visas per quarter for all employment-based cases and already has more than 17,000 in line for FY 2013.

Impact on Employers

For companies, the unavailability of sufficient numbers of permanent resident visas may mean a much longer processing timeframe for employment-based cases. Employers should regularly review each foreign national employee’s current nonimmigrant status and work authorization for long-term planning.

Note: This article was published in the August/September issue of the Immigration eAuthority.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.