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Visa Bulletin for EB-2 & EB-3: Trends & Predictions

Each month, Charlie Oppenheim, the United States Department of State’s Chief of Immigrant Visa Control and Reporting offers insights and forecasts on visa processing and how the visa bulletin may be updated to reflect processing time frames for family-based and employment-based visas. In this article, we synthesize Charlie’s major predictions and explanations about employment-based visas, EB-2 and EB-3, and discuss some ongoing consequences of pandemic-related delays and backlogs in visa processing. 

What is the current status of Employment-Based Visas in 2021? 

By September 2021, Charlie Oppenheim identified a large amount of outstanding unused employment-based visas under the 2021 fiscal year limits.

According to Charlie, this is particularly due to slowdowns with consular processing caused by the COVID-19 pandemic, whereas adjustment of status applications are being approved at their fastest pace since 2005.

At the same time, the United States Citizenship and Immigration Services (USCIS) is dealing with an annual limit for employment-based visas that is over 65% higher than 2020. This means there are generally more available visas to process for approval under 2021 limits, despite slowdowns from the pandemic.

The Department of State is working with the USCIS to use as many employment-based visas as possible by the end of the fiscal year, but it is likely there will be unused visas for 2021.

Will there be a large amount of unused visas in 2022 as well? 

As we have seen in 2021, consequences of the COVID-19 pandemic have caused a slowdown in processing visas, particularly abroad. It is difficult to predict whether this impact will continue into 2022, particularly because of the many variables contributing to unused visas.

According to Charlie, staffing issues caused by the pandemic are a major factor contributing to processing delays. Other factors, such as difficulty for applicants to attend required medical examinations, have contributed to unused visas. Moreover, many applicants have become wary of overseas travel and thus are not using available visas. When applicants do this, and fail to timely respond, they can tend to subsequently respond in a surge – perhaps during periods of positive news regarding the pandemic – which can overwhelm the system. 

What will the EB visa limit for 2022? 

While it is not known for certain, it is expected that the visa limit will move upward to 290,000 for 2022. The limit in 2021 is 262,288 — a potential increase of nearly 28,000. With this increase, the annual limit on a per country basis would increase as well because per country limits are 7% of the total limit. Thus, a single country under EB visas has a limit of 20,300 for 2022 (it was 18,360 in 2021). 

Will EB dates move forward faster? 

According to Charlie, processing for all EB categories advanced rapidly throughout July. Charlie says that the numbers available for use each month are met by a high demand of applicants in the India EB-2 category, and this demand is in weekly groupings, which can prevent the dates from moving forward too fast. 

Will final action dates move forward in the new fiscal year? 

The dates listed for September 2021 are likely to remain the same for October 2021, the beginning of the new fiscal year. However, the China and India EB-2 dates may move forward on the dates for filing chart. 

What is the status of EB-3 filing dates for India? 

Due to a large number of EB-3 applications from India, the Department of State retrogressed the application filing date from January 1, 2015 to January 1, 2014. According to Charlie, due to the demand for EB-3 visas from India, it is unlikely that the retrogressed date will be updated to January 1, 2015 or any date thereafter. Charlie says the lack of movement in EB-3 India dates will be addressed in greater detail in the October or November visa bulletin. 

Why are dates not moving when there are so many unused visas? 

The movement of dates is occurring exactly as it would despite the pandemic as applications move through the system. However, the number of visas available, determined by annual limits, are not being fully used due to issues related to the pandemic, such as complications with processing by the USCIS. 

What is causing delays in visa interviews? 

Much like other issues, the delay in final visa interviews is due to the ongoing pandemic. The National Visa Center (NVC) receives Consulates’ scheduling capacity 30 to 60 days in advance, and the NVC has scheduled visa appointments throughout the pandemic where possible, in response to local restrictions that impact Consulates and Embassies located throughout the world. Thus, a relatively small percentage of applicants that have priority dates within the final action dates for September will be completely processed.

The percentage processed should be consistent with numbers from recent months. Charlie says 30,000 applicants have been scheduled for interviews in September, in accordance with safety requirements for COVID-19. 

How to check interview status?

If an applicant has submitted all necessary documents and paid all fees, he or she is eligible to be scheduled for an interview. However, there may be a delay in scheduling the interview due to the pandemic’s impact on logistics and operational capacity. Applicants should receive an email informing them when all necessary documents and fees have been submitted. An applicant may also check the status of his or her application online, and determine whether all of their necessary documents have been submitted by logging onto the NVC Consular Electronic Application Center (CEAC), where the summary page should show “Paid and Accepted” when the applicant has completed all the steps. 

NVC will work with the Consulate or Embassy where the applicant submitted his or her application in order to get an interview scheduled. Just like how applications are processed, interviews are scheduled on a first-in, first-out basis and available appointment slots are filled in accordance with the capacity at each individual Consulate or Embassy. The capacity of each Consulate or Embassy can vary depending on the country and the severity of COVID-19 restrictions there. 

The NVC has been publishing its Immigrant Visa Backlog Report each month since April 2021, where it records the amount of applicants who have been processed by the NVC and those who are currently pending in documentarily qualified complete status. In particular, this tool provides a perspective on backlogs caused by the pandemic. 

Will Employment-Based visas be retrogressed in 2022? 

Charlie does not expect a retrogression for employment-based visas is not anticipated for 2022, however, any retrogression would most likely occur during the end of the 2022 fiscal year, around August or September. To avoid retrogression, Charlie says he tries to control the forward movement of the action dates. 

How to know more about EB-2 and EB-3 trends and predictions? 

Along with Charlie Oppenheim, the USCIS Ombudsman provides information to applicants regarding delays and backlogs, including by checking case processing times within the USCIS, checking an applicant’s case status with the USCIS. The USCIS Ombudsman can also help with typographic errors, mailing issues, lost files, emergencies or hardships, U.S. military and their families, and more. Charlie regularly communicates with the USCIS Ombudsman, the NVC, and USCIS officials to coordinate logistics, projections, and adjustments to the visa bulletin. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

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