Visa Bulletin for May 2007 carried a glimmer of hope for stagnant EB categories. On April 20, 2007, Sheela Murthy spoke on an immigration visa panel with Mr. Charles Oppenheim, Chief Immigrant Visa Control and Reporting Division, Department of State Visa Office, at an American Immigration Lawyers Association (AILA) Conference. After the panel, Mr. Oppenheim discussed the future of visa numbers with Ms. Murthy. He acknowledged that an earlier dialogue during a previous DC AILA Chapter meeting with Attorneys Sheela Murthy and Aron Finkelstein, also of the Murthy Law Firm, had played an important part in ensuing discussions with other government agencies as to the factors impacting the use of Employment immigrant visa numbers during the summer months. Through his deliberations with the U.S. Dept of Labor and the USCIS, Mr. Oppenheim determined that it was appropriate to release some additional visa numbers by moving some of the May cut-off dates, and that movement for India and China is likely to occur, possibly as early as June or July 2007! On April 26, 2007, Mr. Oppenheim confirmed and reviewed this MurthyBulletin article with Attorney Murthy personally once again to ensure its accuracy with respect to the various discussions with the Murthy Law Firm and his estimates on the movement of worldwide immigrant visa numbers.
Visa Numbers Based on Demand
As regular MurthyDotCom and MurthyBulletin readers know, visa number movement is based upon a number of variables, one of which is the amount of expected demand. [The U.S. Department of State's Visa Bulletin chart is always available on MurthyDotCom.] The U.S. Department of State (DOS) must estimate this demand when it determines what cutoff dates, if any, to establish in the monthly Visa Bulletin. If the demand which DOS has anticipated does not materialize, it is possible that visa numbers will go unused. When asked, Mr. Oppenheim mentioned that this did happen last year and resulted in about 11,000 immigrant visa numbers not being used last fiscal year.
Demand Overestimated : Our Input
Attorneys Murthy and Finkelstein spoke with Mr. Oppenheim on February 28, 2007 at an AILA meeting. Mr. Finkelstein pointed out that, based on our firm's experience it appeared that the DOL figures were exaggerated. One of these reasons was that the DOL's Backlog Processing Centers (BPCs) were to be processing cases in a First-In / First-Out (FIFO) order. Thus, they already have processed many of the older cases with earlier priority dates. These older cases have already made their way into the USCIS system, if the employers are intending to move forward with their respective cases.
Additionally, many of the BPC cases are not moving forward to the USCIS, even after approval from DOL. Although the BPC sent out 45-day continuation letters to determine ongoing employer interest, many employers are no longer interested, given the lengthy delays in the DOL processing of cases. Many of the employees have moved on to other job opportunities. Thus, it is not appropriate to look at the number of cases in the BPCs and assume that each translates to a demand for a visa number in the near future. The ratio is actually fairly small for the cases that are being approved at this time.
Also discussed was the possibility that the labor substitution process will end in the near future. This would reduce some of the demand for visa numbers and the use of older priority dates. Without substitution, many of the older cases will simply be abandoned because the employers will not continue to sponsor the original beneficiaries for any number of reasons.
Expectations
Based upon these discussions, we expect some movement for India and China as early as the June or July 2007 Visa Bulletin. We do not have indications of how far forward the dates will move. The Visa Bulletin for June 2007 would usually be issued around the middle of May. We believe that any movements could impact both EB2 and EB3 petitions at some point. For now, people should continue as usual. Anyone eligible to file the I-140 petition, should likely do so. S/he should continue to extend his or her nonimmigrant status and not make any assumptions about the ability to file the I-485.
We would also note that, while forward movement is expected for the summer in 2007, it is also expected that the cutoff dates could move further back during the fall of 2007. Therefore, those who benefit by the movement need to take advantage of it while they can.
Flexibility of DOS Visa Office is Appreciated
We at the Murthy Law Firm extend our most sincere appreciation and thanks to Charles Oppenheim for considering our input and verifying our theories. We know that each visa number represents an individual with potential benefits flowing to all family members. We know that wasting even a single visa number means that an employer's needs go unmet and a person's dreams go unfulfilled. While we think it is abundantly clear that more visa numbers are needed, we are very pleased that the DOS Visa Office has determined that the cutoff dates will likely be shifted forward in an effort to avoid wasting visa numbers this year.
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