The Department of State in Washington, D.C. Immigration policy functions through arcane rules and ... [+]
Immigration policy functions through arcane rules and publications. One of these publications is the State Department Visa Bulletin. For 23 years, until his retirement in December 2022, Charlie Oppenheim was the chief of immigrant visa control and reporting at the U.S. Department of State and oversaw the monthly publication of the Visa Bulletin. Oppenheim was one of a select few people working in the federal government who understood the interaction between the annual limits and per-country limits in the U.S. immigration system. He is currently the Director of Visa Consulting for WR Immigration. I interviewed Oppenheim, who replied in writing, and he explained how the Visa Bulletin works and affects immigration policy and family and employment-based immigration.
Stuart Anderson: What is the Visa Bulletin?
Charlie Oppenheim: The Visa Office is responsible for administering the various annual numerical limits on immigrants, subdivided by preference category and country, as established in various sections of the Immigration and Nationality Act (INA). It does so by subdividing those annual preference and foreign state chargeability limits into monthly allotments throughout the fiscal year. The Visa Office aims to utilize a specific total of visa numbers each month to maximize the number use under the applicable annual limit.
Stuart Anderson: What needs to be taken into account each month?
Charlie Oppenheim: During this process, several variables must be considered, such as how many numbers have already been used, future number use and how many additional numbers U.S. Citizenship and Immigration Services (USCIS) may use for adjustment of status cases based on Final Action Date movements. This process ultimately results in the establishment of Final Action Dates. Once this has been done, the Visa Office publishes the Visa Bulletin, which is a monthly periodical summarizing the availability of visas for the coming month. It also includes other visa-related information.
The Visa Bulletin may also provide other information, such as projections of visa availability in the coming months, issues which may impact visa processing, changes in policy, etc. This is done to keep those interested in the immigrant visa process informed and minimize the chance that people may be caught off guard regarding any potential changes in visa availability.
Anderson: Can you explain how the dates in the Visa Bulletin operate?
Oppenheim: The Visa Bulletin contains two different charts which represent visa availability for that specific month.
Chart A represents the Final Action Dates that will govern the potential scheduling of cases for that month. There are three options that may be displayed:
1) A Final Action Date is listed. This date is intended to represent the priority date (typically the date a petition for immigrant status was filed) of the first applicant for whom a visa number was not available during that month. Therefore, only persons with a priority date earlier than that date are eligible for potential final action on their case—resulting in visa issuance at an overseas post or adjustment of status if being processed in the United States.
2) The preference category is listed as “C” (i.e., Current). This designation indicates that the Visa Office has determined that applicant demand is less than the visa numbers available for use in that particular month. For example, there are 500 numbers available for use during June, but there are only 350 applicants who are eligible to be scheduled for potential final action on their case during that month. In such a case, the category would be current.
3) The preference category is listed as “U” (i.e., Unavailable). This would indicate that either the annual limit for that preference category has already been reached or is expected to have been reached by the beginning of the month.
Chart B represents the Application Filing Dates. The Visa Office estimates that the applicable Final Action Date is likely to be at a specific period in the future. These dates would typically be based on the known demand within the currently established Application Filing Date for that preference, plus an estimate of the future (new) applicant demand required to maximize the number use under the annual limit at that future time.
The Visa Bulletin also lists a chart with information on the numbers that can be made available for use under the annual Diversity Visa (DV) Program. These listings are like those in Chart A, with the main difference being that each DV case is assigned a Rank number during the selection process for that annual program, not a priority date. Therefore, listing a DV Rank number would indicate the first case which could not be scheduled for potential final action during that month.
Anderson: What is the biggest misconception people may have about the bulletin?
Oppenheim: The monthly dates announced in the Visa Bulletin are based on the best information available when those dates are determined and only intended to represent visa availability for that specific month. Many people assume that everyone with a priority date before the applicable Final Action Date listed in the Visa Bulletin has been processed to conclusion. Nothing could be further from the truth, and there are thousands of people who have not acted on their case in a timely manner and could potentially do so at any time in the future.
Therefore, subsequent changes in the demand pattern for numbers could affect the future availability of numbers, causing dates to slow, be held or be retrogressed.
Every individual in a case, whether principal, spouse, or child, counts against the applicable annual limit for that preference category. There also are sometimes extenuating circumstances, such as those experienced during the Covid-19 pandemic, which can impact visa processing. This may prevent the State Department or USCIS from acting on all the currently eligible cases because of limited processing capacity.
Anderson: What is “retrogression”?
Oppenheim: A retrogression is when the newly announced Final Action Date for the upcoming month (i.e., June) is earlier than that of the current (i.e., May) month listed in the Visa Bulletin. During the Visa Office’s determination of visa availability for the upcoming month, it may determine it is necessary to retrogress a final action date to limit the future use of numbers in a particular visa category. Such action is more likely to occur towards the end of the fiscal year to hold numbers used within a prescribed annual numerical limit. Often such action may only be temporary, and ideally there could be a full recovery to the previously established date for October, the first month of the new fiscal year. Unfortunately, this is not always the case when the demand for numbers remains much higher than originally expected.
Anderson: What employment-based immigration issues do you think people should be looking at in 2023?
Oppenheim: The employment-based annual limits for FY 2021 (262,288), FY 2022 (281,507), and FY 2023 (197,000) have been artificially high limits. This was due to the negative impact the Covid-19 pandemic had on family-sponsored processing at overseas posts during the preceding year. These high limits may have resulted in some people developing unreasonable expectations of the future movement of the employment-based Final Action Dates and expedited processing times.
By the end of FY 2023, overseas processing should return to relatively normal levels, and I would not expect there to be more than 10,000 unused family-sponsored numbers. Those numbers would be added to the FY 2024 employment-based (minimum 140,000) annual limit. That would result in far fewer numbers available for employment-based use next year [than in FY 2023], which is likely to mean slower forward movement of the final action dates, and longer wait times than those experienced in recent years.
Anderson: How does U.S. Citizenship and Immigration Services (USCIS) use the Visa Bulletin?
Oppenheim: USCIS uses the Final Action Dates listed in Chart A to determine which adjustment of status cases are eligible for potential final action each month. USCIS also uses the Application Filing Dates that are listed in Chart B to determine which applicants will be allowed to proceed with the early filing of their adjustment of status case. Such filings increase the likelihood that all required processing will have been completed by the time the applicant’s priority date actually becomes eligible for final action (based on the forward movement of the applicable Final Action Date).
This practice also provides much more visibility into potential future demand, which can help reduce volatility in the movement of future final action dates. USCIS makes its determination of whether Chart A or B will govern the filing of new adjustment of status on a monthly basis. Once USCIS has estimated that there will be sufficient demand to use all immediately available numbers, the agency will then only allow Chart A to be used for filing purposes through the end of that fiscal year.
Anderson: Do you see any issues with USCIS in the current fiscal year on employment-based green card processing?
Oppenheim: That is difficult to say without having access to all the required statistical data to make the most informed decision. That being said, I am a little confused as to why it has been necessary to retrogress so many of the employment-based preferences this year, in some cases several times, and for the sudden need to implement a Rest of World EB-2 final action date. Except for seven months, the Rest of World EB-2 preference category has continuously been “current” since November 2012.
Anderson: What advice do you have for people waiting for their green cards who read the Visa Bulletin?
Oppenheim: Patience is the key. Future forward movement of the final action dates is likely to be slowed in many employment-based preferences. However, I would expect continued forward movement of most of the family-sponsored Final Action Dates.
It will be increasingly important to closely monitor the monthly Visa Bulletin for any items that may be included on future visa availability issues. When I was responsible for the publication of the Visa Bulletin I always attempted to provide at least one or two months of advance notice whenever it became apparent that any type of “corrective” action of a final action date may be required. I knew this was essential information for applicants and visa practitioners for future planning. The State Department seems to be continuing with that practice and has done an excellent job in that respect.
Anderson: Why do you think so many people around the world want to immigrate to America?
Oppenheim: Being able to immigrate to America provides people around the world with unique opportunities. They can maximize their talents, gain an education, tap into America’s outstanding culture for starting businesses, escape ethnic, religious or political persecution and do everything within their power to ensure their children have a better life. That is why so many people want to immigrate to America.
