Archive for the 'Visa Bulletins' Category

Unused Visas: To Recapture or Not to Recapture- That Is The Question

Please visit this link before reading the article as the comment from Attorney Roger Algase is important because he clarifies that more understanding is necessary in the article. The issue is complicated no doubt and it would be appreciated if anyone who can make the issue crystal clear should comment on this. 

http://discuss.ilw.com/content.php?3445-Article-Unused-Visas-To-Recapture-or-Not-to-Recapture-That-Is-The-Question-By-Tahmina-Watson

To help discern the issues, here is the first draft of my “Unused Visa chart V1” with all the relevant sections of the current law. The pieces of the puzzle have been laid down- now to put the picture together. Feel free to help.

First draft to understand where visas are not being used and need recapturing

First draft to understand where visas are not being used and need recapturing

______________________________________________________________________________________________

(The below article needs to be updated and will be updated soon). 

The Politico Newspaper broke a story earlier this week (which has since been repeated by many other news outlets including the Wall Street Journal)  that Obama met with various business officials to discuss employment-based immigration issues that can be addressed with executive action.  One of those issues was apparently to recapture unused visas.

That issue caught my eye as it has been on my research to-do list for a while.  The news reports prompted me to research the law as to whether the president has the authority to recapture such unused visas. My opinion is that the law already allows for it.

Here is what the Immigration Nationality Act says at § 206 (8 USC 1156):

If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.

The law already allows the use of unused visa. So what is all the fuss about?

Each year 140,000 employment-based immigrant visas are issued. There is a complicated formula to calculate visa distribution.  The questions we should ask are these: (1)  In each fiscal year, do we have a record of how many visas were denied or otherwise not used? (2)  If so, do we know if they were reused within that particular fiscal year? Perhaps the Department of State can shed light on how many were unused from previous years.  Here is a report that lists number of visas issued.

From discerning all the complicated legal mumbo-jumbo from the statute,  the law basically says unused visas from the previous year will be added on to the current year of visa availability.  From what I can tell, unused visas are generally being put back in the pool.   While I cannot completely understand the numbers in the above linked reports, I believe the information should be available.  Reports from the Wall Street Journal and Politico discuss that 200,000 visas can be recaptured.  I would very much like to know how that number was determined (if anyone reading this article knows, then please do let me know!).

If indeed there were unused visas in past fiscal years that need recapturing, then do we even need a new law or executive order to recapture them? The law above in black and white clearly says they can be reused.

Therefore, in my opinion, unused visas- from years past,  can be reissued to other qualifying immigrants. No executive order necessary. Just understanding, implementation and execution.

I will continue my research and update this article in due course, if my research leads to more worthwhile information. But in the meantime, your question may be- why is this important?

The Backlog.  The visa backlog is one of the biggest problems our broken immigration system is encountering.  You may often hear the phrase  that people will have to go to the back of the ‘line’ to get their visas. There is no ‘line’ as such but the’ line’ refers to the waiting time to get a visa. People are waiting for years, sometimes, decades to get visas.  The employment-based preference categories have severe backlogs, particularly for China, India, Mexico and the Philippines.  Recapturing the unused visas will help reduce the backlog, help bring security and stability into peoples’ lives, which in turn will help businesses hire the right people, focus on growing their businesses and not worry about whether their employees will stay or leave the US.

Will the President include this in his list of executive orders? Well, I don’t think an executive order is necessary for the above reasons. But let’s imagine I missed something in my research and it does need an executive order. Will he include it in his list?  Hard to say.  If he is looking for maximum impact, this is definitely one way to make a big difference.  Politically, he is already in a challenging situation by all accounts- the GOP will take issue with whatever he does.  So, why not go for maximum impact and just go big?

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

September 2014 Visa Bulletin Commentary

The September 2014 visa bulletin was released today. Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico:  F2A category advances a whole 8 months taking the priority date to 1 January 2013 (great news!). F2B preference advances 2 months with PD at 1 September 2007;  No change in F4 category leaving PD at 1 January 2002;  EB2 is current and, and EB3 sees no movement leaving to PD at 1 April 2011.

For India only:  F2A category advances a whole 8 months taking the priority date at 1 January 2013 (great news!). F2B preference advances 2 months with PD at 1 September 2007;  No change in F4 category leaving PD at 1 January 2002;  EB2 India sees about 4 months advancement taking PD to 1 May 2009 and EB3 sees no movement leaving priority date at 8 November 2003.

If you are eligible to file,  it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until September 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the October 2014 visa bulletin when it is released. See below for future cut off dates information:

News re. upcoming visa availability:

D.  VISA AVAILABILITY IN THE COMING MONTHS

INDIA Employment-based Second Preference: The use of potentially “otherwise unused” Employment numbers prescribed by Section 202(a)(5) of the Immigration and Nationality Act (INA) has allowed the India Employment Second preference cut-off date to advance very rapidly in recent months. Continued forward movement of this cut-off date during the upcoming months cannot be guaranteed, however, and no assumptions should be made until the dates are formally announced. Once there is a significant increase in India Employment Second preference demand it will be necessary to retrogress the cut-off date, possibly as early as November, to hold number use within the fiscal year 2015 annual limit.

September 2014 Visa Bulletin Is Out

A few moments ago, the Dept. of State released the September 2014 visa bulletin.  Here is a link.  Please stay tuned for our usual commentary.

August 2014 Visa Bulletin Commentary

The August 2014 visa bulletin was released today. Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: No movement in F2A category leaving priority date at 1 May 2012, F2B preference advanced 60 days with PD at 1 July 2007;  F4 category advanced 8 days to PD at 1 January 200s;  EB2 is current and, and EB3 sees no movement leaving to PD at 1 April 2011.

For India only:  No movement in F2A category  leaving priority date at 1 May 2012, F2B preference advanced 60 days with PD at 1 July 2007;  F4 category advanced 8 days to PD at 1 January 2002;  EB India sees a 4 months and 21 days jump forward  taking PD to 22 January 2009 and EB3 sees some forward movement of 7 days taking us to priority date 8 November 2003.

With the jump forward for EB3 India, it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until August 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the September 2014 visa bulletin when it is released. See below for future cut off dates information:

D.  VISA AVAILABILITY IN THE COMING MONTHS

The China-mainland born Employment Third and Third Other Workers cut-off dates have advanced for the month of August, and could do so again for September. There are two reasons for this advance after the retrogression of the cut-off date earlier this summer: 1) The heavy demand by applicants with priority dates significantly (years) earlier than the previous cut-off date has declined during the past two months, and 2) declining number use in the Family preferences during May and June, combined with updated estimates of such number use through the end of the fiscal year, has resulted in availability of several hundred numbers for use in the China-mainland born Employment Third preference.

During the past two months, the India Employment Second preference cut-off date has advanced very rapidly based on the projected availability of “otherwise unused” numbers under the worldwide preference limit. It must not be assumed that this cut-off date will continue to advance at the same pace during the coming months. A cut-off date does not mean that everyone with a priority date before such cut-off date has already been processed to conclusion. It remains to be seen how heavy the demand for visa numbers by applicants will be in the coming months, and what the priority dates of such applicants may be. Heavy demand by applicants with priority dates significantly earlier than the established cut-off date is expected to materialize within the next several months, at which time the cut-off date is likely to retrogress significantly.

July 2014 Visa Bulletin Commentary- EB2 India Sees Significant Advancement!

visa-passport blog picThe July 2014 visa bulletin was released this morning.

Headline: EB2 India sees a jump forward of 3 years, 9 months and 18 days.  

Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: No movement in F2A category since last month’s retrogression leaving priority date at 1 May 2012, F2B preference advanced 30 days with PD at 1 May 2007;  F4 category advanced 7 days to PD at 22 December 2001;  EB2 is current and, and EB3 sees no movement since last month’s retrogression leaving to PD at 1 April 2011.

For India only:  No movement in F2A category since last months retrogression leaving priority date at 1 May 2012, F2B preference advanced 30 days with PD at 1 May 2007;  F4 category advanced 7 days to PD at 22 December 2001;  EB India sees huge jump forward of 3 years, 9 months and 18 days taking PD to 1 September 2008 and EB3 sees some forward movement of 15 days taking us to priority date 1 November 2003.

With the significant jump forward for EB3 India, it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until July 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the August 2014 visa bulletin when it is released.

 

July 2014 Visa Bulletin Is Out!

The July 2014 Visa Bulletin was released a short while ago. Our usual commentary to follow soon, stay tuned!

June 2014 Visa Bulletin Commentary

visa-passport blog picThe June 2014 Visa Bulletin was released today.  Retrogrssion in F2A and EB3 all countries categories. 

Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: F2A retrogressed1 year and 4 months to 1 May 2012, F2B preference advanced 60 days with PD at 1 April 2007;  F4 category advanced 7 days to PD at 15 December 2001;  EB2 is current and, and EB3  has retrogressed  1 years and 6 months to PD at 1 April 2011.

For India only:  F2A retrogressed1 yeas and 4 months to 1 May 2012, F2B preference advanced 60 days with PD at 1 April 2007;  F4 category advanced 7 days to PD at 15 December 2001; there is still no movement in EB2 preference category and EB3 sees some forward movement of 14 days taking us to priority date 15 October 2003.

While there was warning of retrogression last month, it is always hard to see it in black and white.  Please see below for message from Department of State regarding further possible retrogression.

We will report on the July 2014 visa bulletin when it is released.

Important text from the June 2014 visa bulletin below.

 D.  RETROGRESSION OF JUNE CUT-OFF DATES

WORLDWIDE F2A:
The cut-off date for the Family F2A category was advanced at a very rapid pace during fiscal year 2013 in an effort to generate demand to use all numbers available under the annual limit. Those movements have resulted in a dramatic increase in the level of applicant demand being received during the past seven months. This has required the retrogression of the Family F2A cut-off date for June in an effort to hold number use within the annual numerical limit. Further retrogression cannot be ruled out should demand by applicants with very early priority dates continue to increase.

MEXICO F2A:
Despite a previous retrogression, the level of demand has remained excessive, resulting in a further retrogression of this cut-off date to hold number use within the annual limit.

Employment Third, and Third Other Workers:
The unexpected and dramatic increase in demand being received from U.S. Citizenship and Immigration Service Offices during the past several months has resulted in number use approaching the annual limit for this category. As a result, it has been necessary to retrogress the Worldwide, China, and Mexico cut-off dates for the month of June.

Notices were included in several Visa Bulletins during the past year alerting readers to the possibility of such retrogressions. While corrective action in some categories has become necessary earlier than was anticipated based on the information available earlier, it is hoped that readers are not caught off guard by these retrogressions.

June 2014 Visa Bulletin out!

The June 2014 Visa Bulletin is out! Here is a link.  Usual commentary to follow shortly. Headline is that there is major retrogression in F2A category.  Below is a copy of the relevant text from the visa bulletin.  Stay tuned for more.

 

D.  RETROGRESSION OF JUNE CUT-OFF DATES

WORLDWIDE F2A:
The cut-off date for the Family F2A category was advanced at a very rapid pace during fiscal year 2013 in an effort to generate demand to use all numbers available under the annual limit. Those movements have resulted in a dramatic increase in the level of applicant demand being received during the past seven months. This has required the retrogression of the Family F2A cut-off date for June in an effort to hold number use within the annual numerical limit. Further retrogression cannot be ruled out should demand by applicants with very early priority dates continue to increase.

MEXICO F2A:
Despite a previous retrogression, the level of demand has remained excessive, resulting in a further retrogression of this cut-off date to hold number use within the annual limit.

Employment Third, and Third Other Workers:
The unexpected and dramatic increase in demand being received from U.S. Citizenship and Immigration Service Offices during the past several months has resulted in number use approaching the annual limit for this category. As a result, it has been necessary to retrogress the Worldwide, China, and Mexico cut-off dates for the month of June.

Notices were included in several Visa Bulletins during the past year alerting readers to the possibility of such retrogressions. While corrective action in some categories has become necessary earlier than was anticipated based on the information available earlier, it is hoped that readers are not caught off guard by these retrogressions.

Priority date updates from AILA and Charlie Oppenheim

(copied from AILA)

Visa Office Update on Priority Dates and Demand (Updated 4/28/14)

Cite as “AILA InfoNet Doc. No. 12012349 (posted Apr. 28, 2014)”

April 2014:On Monday April 21, 2014 Mr. Charlie Oppenheim of the Department of State’s Visa Office (VO) spoke to AILA members Roberta Freedman and Michael Nowlan regarding what his office is currently seeing with regard to visa demand and what might be expected in terms of Visa Bulletin movement at this time. Below are notes from that call. It is important for AILA members to remember that these notes are based on Mr. Oppenheim’s impressions at this time, and are subject to change based on usage and/or new developments. All projections, including those that are noted in the Visa Bulletin are subject to change depending on demand that is reported or observed by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) in “real time.”General Notes: The National Visa Center (NVC) is now sending out requests for payments 8 to 12 months in advance the of the priority date becoming “current.” The NVC had previously been contacting applicants 12 to 18 months in advance. Applicants processing abroad appear to be waiting until their priority date is current, or almost current, to pay the fees. This could be to avoid the long delay where the visa fees are held without a visa being issued. Once payment is received, it helps the VO confirm the actual demand overseas.

The VO expects to be able to make predictions regarding worldwide (WW) FB-2A, WW EB-3 and China EB-3 in May (see below) which could be realized in the July Visa Bulletin, or perhaps sooner.

Family Based Second Preference 2A Worldwide (FB-2A):

  • Demand is starting to catch up. FB-2A for Mexico will retrogress soon and more than the WW reported dates. It appears that the WW FB-2A category will also retrogress, perhaps back to 2012 in the June or July Visa Bulletin.
  • Why the retrogression? USCIS seems to be processing more approvals. It is possible that some FB-2A beneficiaries were holding off on filing for green cards in anticipation of comprehensive immigration reform, and demand is now “catching up” to the posted dates.
  • 85% to 95% of these cases are processed at U.S. consulates.
  • The VO was not able to confirm whether I-601 processing by USCIS had a positive or negative impact on the demand for visa numbers. The NVC may have that data.

Family Based Second Preference 2B Worldwide (FB-2B):

  • Demand is down right now, so movement is expected to continue to advance.
  • It is likely the same scenario will occur in the next fiscal year that occurred with WW FB-2A. Specifically, that demand will increase as the category is advanced and then there will be high demand, which will reduce forward movement.

Employment Based 5th Preference China (EB-5):

  • China EB5 could retrogress later this year, possibly August or September.
  • Retrogression for China EB-5 in the 2015 fiscal year seems almost inevitable, as there are over 7,000 I-526 applications pending and 80% are from China.
  • More on this topic is expected to be known in the next few weeks, and will be shared at an upcoming panel in May with AILA Past-President Bernie Wolfsdorf.

Employment Based 1st Preference (EB-1):

  • It is still a little early in the fiscal year to know how many unused cases will drop down into EB-2. EB-1 usage is heavier this year than last year.

Employment Based 2nd Preference India (EB-2):

  • It is possible in August, but more likely in September, that India EB-2 will open at 1/1/2008 or perhaps later in 2008, in order to utilize the rest of the EB-2 visa numbers that were unused by the WW categories.
  • How many numbers will be utilized depends on EB-1 and EB-2 usage in the WW categories for the rest of the fiscal year (it could be 5,000 or more). This would be less than what was available in fiscal year 2013.
  • No expected changes for WW EB-2.

Employment Based 3rd Preference Worldwide (EB-3):

  • The VO has limited knowledge as to the number of eligible applicants, and USCIS has encouraged DOS to “move the category forward” over the last 5 months. Demand appears to be increasing, thus, it is unlikely in the short run that the category will move forward. In fact, if current demand continues, something may have to be done as early as May 2014 to slow the demand in this category.
  • The last quarter of the fiscal year for 2014 does not look good, and no movement, or retrogression, is possible.PRACTICE POINTER: Do not delay on filing I-485 adjustment of status cases. WW EB-3 could retrogress as early as May or June so encourage your clients to file their cases now if their priority dates are current. The category may not be available as early as May.

Employment Based 3rd Preference China (EB-3):

  • Many Chinese nationals who were waiting in the EB-2 category have been filing to “downgrade” from EB-2 to EB-3, and the result of these requests will be reflected in the coming months. For more information, see “Multiple I-140s, Priority Date Retention, and the 2013 China EB-2/EB-3 Anomaly.
  • High demand is expected to continue in this category and a correction may be reflected as early as the May or June Visa Bulletin, depending on demand.
  • If China FB-2A retrogresses because of the WW FB-2A retrogression discussed above, the unused FB demand could be used by China EB-3.PRACTICE POINTER: Do not delay on filing I-485 adjustment of status cases. China EB-3 could retrogress as early as May or June, so encourage your clients to file their cases now if their priority dates are current. The category may not be available as early as May.

May 2014 Visa Bulletin Commentary

visa-passport blog picThe May 2014 Visa Bulletin was released today.  Big jump on F2B for all countries, India and China but not for Mexcio and Philippines.

Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: F2A remains at 8 September 2013, F2B preference advanced 103 days with PD at 1 February 2007;  F4 category advances 17 days to PD at 8 December 2001;  EB2 is current and, and EB3  has no forward movement with PD remaining 1 October 2012.

For India only:  F2A sees no movement, F2B preference F2B preference advanced 103 days with PD at 1 February 2007;  F4 category advances 17 days to PD at 8 December 2001;

There is still no movement in EB2 preference category and EB3 finally sees some forward movement of 17 days taking us to priority date 1 October 2003.

If your priority date is current, especially in the EB3 All Countries category, congratulations! We hope you file your petition in due course!

We will report on the June 2014 visa bulletin when it is released.

Important text from the May 2014 visa bulletin below.

 D.  VISA AVAILABILITY DURING THE COMING MONTHS

WORLDWIDE F2A:  From early 2013 through September 2013, the level of demand for numbers in this preference category was extremely low. As a result, the F2A cut-off date was advanced at a very rapid pace, in an attempt to generate demand so that the annual numerical limit could be fully utilized. As readers of the Visa Bulletin were advised during that time, such cut-off date advances were not expected to continue, and at some point they could stop, or retrogression might be required.

The level of demand being experienced for FY-2014 has resulted in the Worldwide F2A cut-off date being held since October. Despite no forward movement of the cut-off date, the level of demand has continued to increase dramatically. At the current rate, such demand will require a retrogression of the F2A cut-off date within the next several months. That action would be necessary to hold number use within the annual numerical limit.

MEXICO F2A:  Despite an earlier retrogression of this cut-off date, the level of demand remains extremely heavy. As a result, it is likely that another retrogression of this cut-off date will be required to hold number use within the annual numerical limit.


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