One of the key issues that will need to be addressed in any immigration reform legislation is the current priority date backlog problem. This issue is particularly vexing for Indian nationals, where there is little movement for either EB-2 or EB-3 dates.
AILA members Michael Nowlan and Roberta Freedman recently spoke with the Department of State's Visa Office Head Charlie Oppenheim about current priority date backlog issues. Below are notes from that call which represent Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.
* Mr. Oppenheim’s office has spent considerable time over the past several weeks looking at the new legislative proposals for immigration reform, and how they would impact backlog numbers. They have not done a full review of the recent usage of the immigrant classifications and how the priority dates will move in March. The office plans to have predictions as to how the priority dates will move for the next four months in the March Visa Bulletin.
* India EB-2 continues to see very little movement due to upgrades (EB-3 to EB-2 while maintaining the earlier priority date). Even looking at the current 2004 cut off dates, EB-2 India could easily reach their annual limit. However, the fall down from EB-1 could allow for more numbers to be used for EB-2 India.
* USCIS does not appear to be working to develop any processes or procedures to better capture the number upgrade cases, and so there is no better information expected from that agency to assist Mr. Oppenheim’s office in better managing these numbers.
* Upgrades continue to be a tough issue to manage. In December 2012 alone, India EB2 had 125 cases approved that were from 2003 or earlier.
* EB-1 India and China appear to have used their numbers for this year, but the rest of open EB-1 numbers can “fall across” to satisfy the need from India and China for EB-1, so no retrogression is expected at this time.
* Current numbers indicate that there are approximately 42,000 India EB-2 cases in line prior to May 2010.
* Mr. Oppenheim’s office has very good information regarding how many India EB-3 cases are lined up for the older dates, due to the 2007 retrogression. For example, November 18, 2002 has 63 cases. So the movement in India EB3 has been pretty precise.
One piece of information I found enlightening is that 45% of the visa numbers in the queue are for principal applicants and 55% are for dependents for 2012. This means that more than half of immigrant visa numbers are being used by derivative family members. One can imagine the effect on the priority ate backlog if new legislation is passed that exempts family members from the immigrant visa count.
One little known fact offered by Mr. Oppenheim is that unused Family-based (FB) cases can be used for Employment-based (EB cases), but this does not usually occur because of heavy FB usage.
Thank you to AILA members Michael Nowlan and Roberta Freedman for providing this information.