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  • Article: THE NEW VISA CHARTS – A PRIMER IN INTERPRETING THEM, HISTORICAL PERSPECTIVE, USE IN FORECASTING DEMAND, HOW THE NEW SYSTEM WILL WORK, AND THEIR ADDITIONAL BENEFITS TO ALL. - Part 3 of 5. By Alan Lee, Esq.

    THE NEW VISA CHARTS – A PRIMER IN INTERPRETING THEM, HISTORICAL PERSPECTIVE, USE IN FORECASTING DEMAND, HOW THE NEW SYSTEM WILL WORK, AND THEIR ADDITIONAL BENEFITS TO ALL. - Part 3 of 5

    by


    (NOTE: In the middle of this series, the Visa Office has revised the October 2015 visa bulletin on September 25, 2015, to supersede and replace the version issued on September 9, 2015, due to U.S.C.I.S. discontent with some of the filing dates. Applicants for adjustment of status must now use the revised charts to file I-485 applications. As said in part one of our five-part series, U.S.C.I.S. will in general follow the “final action” dates charts, but may exercise discretion to accept applications in accordance with the “dates for filing” charts. For the month of October, U.S.C.I.S. previously agreed with the State Department to accept adjustment applications using the “dates for filing” charts. However, it was not happy with the “dates for filing” charts for October when they appeared, and so the State Department had to reissue the visa bulletin for October on September 25th with the following changes in the charts for “dates for filing”:

    1. Family-based cases

    · F-1 category for unmarried sons and daughters of the age of 21 for U. S. citizens was changed from 11/15/94 to April 1, 1995 for Mexico born.

    · F-3 category for married sons and daughters of U. S. citizens was changed from 5/22/94 to 5/1/95 also for Mexico born.

    2. Employment-based cases

    · EB-2 for individuals with advanced degrees or exceptional ability was changed from 5/1/14 to 1/1/13 for China born.

    · EB-2 was also changed from 7/1/11 to 7/1/09 for India born.

    · EB-3 for persons with bachelor’s degrees or 2 years of working experience was changed from 1/1/15 to 1/1/10 for Philippines born.

    · EB-3 W for other workers holding lesser qualifications was changed from 1/1/15 to 1/1/10 also for Philippines born.)

    Visa Bulletin - October 2015

    A. Application Final Action Dates for
    Family-Sponsored Preference Cases

    B. Dates for Filing Family-Sponsored
    Visa Applications

    Family-Sponsored

    All Chargeability Areas Except Those Listed

    CHINA – mainland Born

    INDIA

    MEXICO

    Philippines

    Family-Sponsored

    All Chargeability Areas Except Those Listed

    CHINA – mainland Born

    INDIA

    MEXICO

    Philippines

    F1

    15JAN08

    15JAN08

    15JAN08

    22NOV94

    01JUN01

    F1

    01MAY09

    01MAY09

    01MAY09

    01APR95

    01SEP05

    F2A

    15APR14

    15APR14

    15APR14

    01MAR14

    15APR14

    F2A

    01MAR15

    01MAR15

    01MAR15

    01MAR15

    01MAR15

    F2B

    15JAN09

    15JAN09

    15JAN09

    01AUG95

    01OCT04

    F2B

    01JUL10

    01JUL10

    01JUL10

    01JAN96

    01JAN05

    F3

    22MAY04

    22MAY04

    22MAY04

    08JUN94

    01OCT93

    F3

    01APR05

    01APR05

    01APR05

    01MAY95

    01AUG95

    F4

    08FEB03

    08FEB03

    08FEB03

    22MAR97

    01MAY92

    F4

    01FEB04

    01FEB04

    01FEB04

    01MAY98

    01JAN93

    A. Application Final Action Dates for
    Employment-Based Preference Cases

    B. Dates for Filing Employment-Based
    Visa Applications

    Employment-Based

    All Chargeability Areas Except Those Listed

    CHINA – mainland Born

    INDIA

    MEXICO

    Philippines

    Employment-Based

    All Chargeability Areas Except Those Listed

    CHINA – mainland Born

    INDIA

    MEXICO

    Philippines

    1st

    C

    C

    C

    C

    C

    1st

    C

    C

    C

    C

    C

    2nd

    C

    01JAN12

    01MAY05

    C

    C

    2nd

    C

    01JAN13

    01JUL09

    C

    C

    3rd

    15AUG15

    15OCT11

    08MAR04

    15AUG15

    01JAN07

    3rd

    01SEP15

    01OCT13

    01JUL05

    01SEP15

    01JAN10

    Other Workers

    15AUG15

    01JAN06

    08MAR04

    15AUG15

    01JAN07

    Other Workers

    01SEP15

    01JAN07

    01JUL05

    01SEP15

    01JAN10

    4th

    C

    C

    C

    C

    C

    4th

    C

    C

    C

    C

    C

    Certain Religious Workers

    U

    U

    U

    U

    U

    Certain Religious Workers

    C

    C

    C

    C

    C

    5th Direct Investments

    C

    08OCT13

    C

    C

    C

    5th Targeted Employment Areas/Regional Centers

    C

    01MAY15

    C

    C

    C

    5th Pilot Programs/ Regional Centers

    U

    U

    U

    U

    U

    Part 3 - Use In Forecasting Demand

    The new filing date charts will allow the Visa Office to have a much better view of the demand for visas in all categories, especially employment-based. The major weakness and most consequential blind-spot in predicting demand has been U.S.C.I.S. which adjudicates the vast majority of employment cases. Since family-based demand is largely from overseas, the Visa Office has a much better handle on assessing that since its National Visa Center (NVC) normally receives the cases from U.S.C.I.S. well before priority dates become current, and communicates the statistical information to the Visa Office as to how many individuals will be immigrating in the future. In the system thus far, the Visa Office is like a person with occluded vision who can see 80% down one tunnel full of people (FB cases) but only 10%-15% down the second tunnel (EB cases). The wide disparity is due to the single chart used up to now and U.S.C.I.S. demand not becoming apparent for the most part until the agency requests visa numbers upon case approval, typically 6+ months after the I-485 is filed. In the American Immigration Lawyers Association “Check-In with DOS’s Charlie Oppenheim” of September 15, 2015, it was said that the Visa Office makes educated estimates as to future demand through limited information such as historical patterns, and demand filed prior to subsequent retrogression of dates. This writer recalls that in interviewing Mr. Oppenheim for the article “Examination of EB-2 Visa Demand Vis-a-Vis HR 3012”, Interpreter Releases, Volume 89, Number 10, March 5, 2012, Mr. Oppenheim cited other factors in estimating visa demand such as how many persons with approved petitions had just delayed filing the I-485 applications; what was the attrition rate of those who had given up; how much fall-down would come from other employment categories such as EB-4, EB-5, and EB-1; and that it took U.S.C.I.S. 4-6 months to complete a case and request a visa number. (The writer also recalls in writing the article that he himself attempted to guesstimate EB-2 visa demand through methods such as counting the number of approved labor certifications, pending petitions at the NVC, I-140 receipts, and I-485 inventory). Assuming that U.S.C.I.S. continues to adhere to the “B” charts for acceptance of adjustment of status applications, the Visa Office will be able to look through the almost completely dark tunnel and see the numbers of people standing in it.

    As to the other tunnel over which the Department of State has much control in its vision, the new visa charts on filing will give the Visa Office an even clearer vision as to how many principal applicants and dependents will be immigrating. Under the system up to now, the Visa Office has been reluctant in many situations in going further than sending out “agent of choice” letters until the visa availability date is current or very close to becoming current. This writer has begged the NVC on many occasions to send out either the fee bills or the packet 3 papers when the priority dates are within 3 months of availability or in some cases when the priority dates have already been reached. Payment of the fee bills gives a good idea of whether the qualified principal and which family members are interested in immigrating. Packet 3 (now called the Instructions Package for Immigrant Visa Applicants) gives an even better idea by asking all qualified applicants including dependents to submit documentation such as the DS-260 immigrant visa application, and providing a checklist for submission of documents such as copies of passport data pages, photographs, birth, marriage, divorce, criminal records, etc. Although the Visa Office even without payment of fee bills/packet 3 can know in general how many people will be coming through its having received the approved I-130 petitions from U.S.C.I.S. well before priority dates are current and estimating the attrition rate through historical data, the picture becomes much clearer with the following 2 steps, and the new charts are very helpful in setting an early date as to when packet 3 papers can be solicited and submitted. In the October 2015 visa bulletin, the Visa Office stated that “Applicants for immigrant visas who have a priority date earlier than the cutoff date in the chart below [”B” chart] may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions.” This writer sincerely hopes that the NVC follows up in making available fee bills and packet 3 instructions on a timely basis as the visa applicant is otherwise helpless to submit further papers without tedious argument with the NVC.

    (Part 4 will follow on how the new system of advancing the date of visa availability will actually work).

    Part 1 can be found here.

    Part 2 can be found here.

    Reprinted with permission.


    About The Author

    Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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