DOS Visa Bulletin Updates: No Family Based Movement Until June 2022, EB-3 Retrogressions, Diversity Visa Updates, and More!

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick shares a new update from the Department of State that was recently provided to the American Immigration Lawyers Association (AILA) Liaison Committee regarding the movement of family sponsored categories on the Visa Bulletin. This information was not previously shared on the “Chats with Charlie,” monthly broadcast with Charlie Oppenheim, the Chief of the Immigrant Visa Control and Reporting Division at the Department of State. Additionally, we share new updates regarding employment-based sponsorship, the current retrogressions in the EB-3 category, as well as Diversity Visa lottery updates following recent developments in the judicial system.

Want to know more? Just keep on watching!

Overview

What’s the latest news with respect to immigrant visa numbers?

U.S. immigration laws limit the number of immigrants that can be admitted to the United States each year. The annual numerical immigrant visa limits are based on complex formulas and are subdivided among several preference categories and country “caps.” To illustrate, the annual limit for family-sponsored petitions is 480,000, which includes visas for immediate relatives, while 140,000 visas are allocated for employment-based immigrants. Unused family preference visas from the preceding years are added to employment-based visa numbers to maximize number use.

We have learned that employment-based visa numbers for fiscal year 2022 are expected to be 290,000 – an all-time high. As of today, the pending demand experienced by both the State Department and USCIS in the employment third preference category, for applicants born in India and China, will already exceed the amount of numbers that are available to applicants from those countries throughout fiscal year 2022 in the third preference category. In comparison, in fiscal year 2021, only 9,000 employment-based visas in the third preference category went unused. In fiscal year 2022, there may be close to 85,000 unused employment-based immigrant visas.

Changes in Terminology from “Documentarily Qualified” to “Documentarily Complete”

Recently, the National Visa Center changed its terminology for applications that are considered “documentarily qualified” to “documentarily complete.”

For a case to be “documentarily complete,” the National Visa Center (NVC) must have received and approved all documentation being asked of the applicant on the Department of State Consular Electronic Applications Center (CEAC) portal. Once an application is “documentarily complete,” the National Visa Center will send a notification on the portal or to the applicant’s email address on file. Applicant’s may also call or submit an inquiry with the NVC to see if their case is considered “documentarily complete.” The change in terminology was made to signal to applicant’s that certain documentation must be submitted before a case can proceed to the designated Consulate or Embassy overseas.

EB-3 Visa Retrogression

Visa retrogression is a “term of art” used in immigration to refer to situations where there is more demand in a certain visa category, than there are available visas for that particular month. When this occurs, there is a need to “retrogress” the filing dates for that particular category in order to “cut off” new application filings and ensure there are enough visas to go around.

To slash demand in the EB-3 preference category, the November 2021 Visa Bulletin shows that EB-3 India has retrogressed almost two full years to January 15, 2012, while EB-3 China has retrogressed by about nine and a half months to March 22, 2018. All other countries in the employment third-preference category remain current. These measures have been done in the hope that forward movement might become possible if unused numbers are available in the future.

As Charlie Oppenheim stated in the October “Chats with Charlie” YouTube broadcast, “Again, if and when a retrogression is required, it is hoped that that retrogression would be a one-time retrogression and that potentially if and when demand were to subside and allow it to do so, we would then advance the China employment third preference final action date, but at this time I would not assume that that would be possible for the foreseeable future if a retrogression occurred.”

EB-1 Employment Preference Category

In terms of the first-preference employment category, all countries, including China and India, will remain current through the fiscal year. Any unused numbers in this category may spillover to the second-preference employment category.

Family Based Preference Categories

In terms of the family-based preference categories there has been no movement, and none is expected to take place before June 2022. As our readers will know, in the October “Chats with Charlie” YouTube broadcast, Charlie said that he did not expect any movement of the family sponsored worldwide dates for 3 to 6 months and potentially longer than 6 months.

Should Consular posts resume normal processing for family-sponsored immigrant visas in the future, we will see numbers moving faster in those categories. At the moment, applicants should continue to expect delays in visa processing, given the massive visa backlogs caused by the Coronavirus pandemic. As many of you know, in early 2020 Consulates and Embassies worldwide suspended routine visa services except emergency and mission critical services. It was not until the summer of 2021 that posts started to slowly provide services on a limited basis to the public.

Further, the State Department recently clarified that the adjudication of immigrant visas for immediate relatives continues to remain a top priority for U.S. Embassies and Consulates worldwide during the ongoing Coronavirus pandemic.

Diversity Visa Lottery Applicants

With respect to diversity visa lottery cases, they are being adjudicated according to the State Department’s tier four prioritization schedule, receiving the lowest level of priority after tier two immediate relative and fiancé(e) visa petitions, and tier three family preference immigrant visas, and special immigrant visas.

Recent litigation has reserved visas for diversity visa lottery 2020 winners. Additionally, certain visas will be reserved even past the September 30th deadline.

In accordance with a September 9th court order, the Department of State has instructed consular sections to make every effort within their discretion and subject to posts’ resource constraints, limitations due to the COVID-19 pandemic, and country conditions to prioritize the scheduling and adjudication of additional DV-2021 cases by September 30, 2021.

It is important to note that the court did not order the Department to “prioritize DV-2021 applications over other visa applications.”  The court also did not order the Department to prioritize the adjudication of DV-2021 applications of plaintiffs who have sued the Department over the DV-2021 applications of non-plaintiffs.  The court further said that posts do not have to “drop everything and process DV-2021 applications.”

This means that delays are still expected given that Consulates and Embassies worldwide are still operating at a limited capacity and must balance other priorities as well such as immigrant relative visas.  Applicants are encouraged to contact the Consular post handling their application to determine how soon they can receive a visa interview appointment based on their operating capacity. Overtime more and more Consulates will shift from limited operational capacity to full capacity depending on local country conditions.

Closing predictions as we look ahead

Now that we know that for fiscal year 2022, the employment limit will be approximately 290,000, we can predict that both the State Department and USCIS will face substantial pressure to try to maximize number use. We can expect these agencies to ramp up their efforts to try to handle as many employment-based immigrant visas as possible including training and recruiting more personnel and allocating additional resources to balance the substantial level of demand. Regarding family sponsored applications, much patience will be required, because little movement is expected in the processing of these applications due to the overwhelming backlogs and inability of the Consular posts to meet the demand for visa interviews. On the employment-based side, retrogression in the EB-3 category for China and India is inevitable and will require applicants to remain focused and proactive as the State Department works to normalize demand for these countries.

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