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What to Expect for the Visa Bulletins in Fiscal Year 2019

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Since EB-1 China and India experienced retrogression (i.e., visa backlog) in April 2018, clients have been asking about the potential movement in the EB-1 and EB-2 cut off dates for the visa bulletins, and we have been advising that Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State, anticipates slow forward movement once the new government fiscal year begins October 1, 2018. When the Department of State’s Bureau of Consular Affairs issued the October 2018 Visa Bulletin, the cut-off dates were not surprising; all EB-1 categories were subject to retrogression, and there were moderate advancements in the EB-2 China and India categories. The U.S. Citizenship and Immigration Services (USCIS) did provide some good news by allowing applicants to use the “Dates for Filing Applications” charts for both family-based and employment-based cases to submit I-485 applications for adjustment of status.

What can we expect for the visa bulletins during Fiscal Year (FY) 2019 (October 1, 2018 to September 30, 2019)? Mr. Oppenheim’s recent monthly check-in with the American Immigration Lawyers Association (AILA) provides a few helpful clues.

First, the cut-off dates in the “Dates for Filing Applications” chart are usually set based on where Mr. Oppenheim anticipates the “Final Action Dates” will be in the next 8 to 12 months. Clients can look to the “Dates for Filing Applications” to anticipate how far the “Final Action Dates” will advance over the next year. If Mr. Oppenheim’s estimates are accurate, then it can be anticipated that EB-1 China and India will continue to be retrogressed about a year out, while the other EB-1 categories will be close to current.

Mr. Oppenheim also provided a few details for each employment-based category:

EB-1:  Due to very high demand in the EB-1 Worldwide category, the EB-1 Worldwide “Final Action Dates” are unlikely to move forward before the end of 2018, but there will be some advancement after the beginning of 2019. Mr. Oppenheim is uncertain whether EB-1 Worldwide will become current in FY 2019. He also does not expect any advancement for EB-1 China and India until January 2019, and AILA reports “it is ‘almost guaranteed’ that both categories will be subject to a final action date through the fiscal year.” If this is accurate, then it would be the first time in more than a decade that EB-1 China and India have not been current during a fiscal year.

EB-2 & EB-3 Worldwide:      Both categories return to current in October and is anticipated to remain current into next calendar year. As in previous years, they may retrogress toward the end of the FY once most visas are used; although Mr. Oppenheim did state he has not seen expected demand in EB-3 Worldwide.

EB-2 & EB-3 China:  With the start of the FY, these two categories recover and continue their forward advancement, with EB-3 China slightly ahead of EB-2 China. Mr. Oppenheim is uncertain whether EB-3 China’s slight lead will spur downgrade demand (i.e., applicants changing from EB-2 to EB-3 category). If there is not significant downgrade demand, then EB-3 China may advance more rapidly. Until Mr. Oppenheim has further data for EB-2 and EB-3 China, the cut-off date for EB-3 China will advance slowly to avoid drastic retrogression later in the FY. EB-2 China may be expected to advance a few weeks each month.

EB-2 India and EB-3 India:   The cut-off dates for both categories are in early 2009. Mr. Oppenheim will monitor these two categories closely. Depending on the level of demand, EB-3 India may surpass EB-2 India this FY, spurring a downgrade phenomenon similar to the downgrades from EB-2 China to EB-3 China that we have seen in recent years.

Our firm will continue to monitor the visa bulletins closely and will notify clients once they are eligible to submit their I-485 applications for adjustment of status.

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