Charles Oppenheim, WR Immigration’s Director of Visa Consulting and a retired U.S. Department of State Chief of Visa Controls, brings unmatched expertise from decades of managing the Visa Bulletin. His experience provides unique insights into the “how” and “why” behind the Department of State’s—and to some extent, USCIS’s—approach to immigrant visa allocation and processing.

Recent announcements that visa number limits have been reached for almost all employment-based categories have left many foreign nationals and their supporters puzzled, asking, “Why did this happen so early?” and “What does this mean for my clients, customers, colleagues, or me?” Fortunately, Charlie is here to expertly answer those questions.

Ceri: The Department of State “State” recently announced that the annual limits for the EB-1, EB-3, EW and EB-5 (unreserved) categories have been reached. Can you explain the factors that contribute to these categories hitting their annual limits more than 1 month before the end of the fiscal year? 

Charlie:   The State Department’s goal is to maximize number use under each of the various annual limits.  They do so by establishing monthly targets regarding the amount of visa numbers they wish to be used on a monthly basis in order to reach the annual limits by the end of the fiscal year.

At the end of each month, and before making the determination of the upcoming month’s Final Action Dates, State will compare actual number use versus their targeted amount for that point in the fiscal year.  They will then determine how many numbers remain available for use in subsequent months under the annual limit, make any necessary adjustments in their target for number use in the upcoming month(s), and then make the determination of what action needs to be made with the Final Action Dates. 

Since the determination of the upcoming month’s Final Action Dates is made one month in advance, at the end of the fiscal year sometimes there isn’t time to make the necessary adjustments if their estimated number use total for the previous month(s) was too low. 

This can sometimes result in the Final Action Dates for August and/or September being held or retrogressed to limit future number use, or the need to announce that the preference category has become “Unavailable” if that annual limit is actually reached.        

Ceri: State has made no announcement pertaining to the EB-2 limit being met.   That said, we know there has been a surge in EB-2 filings over the past two years.  Why do you think that category is still open? 

Charlie:  It must be assumed that numbers in the EB-2 category are still available until, as they have already done with other preferences, State announces that the annual limit has been reached. 

It should be noted that in theory, and despite the announcement that visa numbers are no longer available for certain preferences, numbers should be available for any applicant who was scheduled by the National Visa Center for their initial interview to occur during August or September. 

The announcement that the limits have been reached and that no more numbers are available should only prevent final action on comeback cases where the applicant was refused in an earlier month or did not appear for their originally scheduled interview, or for the final processing of Adjustment of Status applicants who are being processed in the U.S.

Ceri: How does the timing of reaching these annual limits this year compare to previous years? Have there been any noticeable trends or changes in the demand for these specific employment-based visa categories?  If so, could you elaborate on those?

Charlie:  These announcements that the various annual limits have been reached have occurred much earlier than in past years.  Normally one should only expect this type of announcement to occur at some point during the month of September, if at all.  

The fact that it has been necessary to make such announcements in August indicates that:

1. the forward movement of those Final Action Dates in earlier months was greater than necessary;
2. State’s estimates regarding monthly number use in recent months were much too low; or
3. there was a sudden and unpredictable surge in number use during July and August.

Ceri: For applicants and employers affected by these announcements, what are the immediate and long-term implications? Are there any particular steps or strategies they should consider in light of these limits being reached?

Charlie:  These announcements reflect the need for applicants to:

1. always act in a very timely manner when filing for their Adjustment of Status:
2. submit any and all required documentation as quickly as possible;
3. unless there is an extremely important reason, do not reschedule  their interview to a later month.  When an interview is rescheduled to a later month, the applicant increases the risk that visa numbers will no longer be available at that time; and
4. if the applicant is refused, make every attempt to overcome that refusal during the month of the original interview.      

Ceri: Given your extensive experience managing the Visa Bulletin, how do you see these announcements influencing people that are applying for Employment-Based Immigrant Visas overseas or who are in the final states of Adjustment of Status in the U.S.?  Will they have to wait until October when the Visa Bulletin resets, and/or do we even expect advancement then, given current demand?

Charlie:   These announcements mean that any applicant attempting to be processed at an overseas post as a “comeback” case (i.e., refused in an earlier month) or those processing their case in the U.S. with USCIS will need to wait until (at least) October before visa numbers will once again be available for potential final action on their case.  

I would expect that State will attempt to have a “full recovery” of the October dates to the latest previously announced Final Action Date for any preference that was subject to retrogression or Unavailability at the end of FY 2024.

Ceri: Can you discuss how the exhaustion of visa numbers in these categories might influence other employment-based visa categories, such as EB-2? Is there potential for visa number redistribution this Fiscal Year, or do these limits operate independently?

Charlie:   Any potential “redistribution” of numbers would have already occurred long before the various limits were reached and may have prevented such action from having occurred earlier.  Therefore, the situation resulting in State’s announcement that the various FY 2024 limits have been reached is final.   The fact that several limits were already reached means that it is likely that State will make a similar announcement for the EB-2 preference category at some point in the coming weeks.

Ceri: What should applicants, employers, and immigration professionals anticipate as we approach the end of the fiscal year and move into the next one? Are there any key developments or changes that you foresee impacting the employment-based immigration landscape?

Charlie:    Although it may seem like a “bad” thing to have happened, the fact that several annual limits have already been reached is actually a good thing.  The reason being that:

1. Number use has been maximized under each of the respective limits, and there will not be any “wasted” numbers;
2. Final action on applicant’s cases has occurred at an earlier point in the year and not (potentially) delayed until as late as September 30th.

Therefore, the only applicants who have actually been negatively impacted by such Unavailability, are those who were unable to finalize action on their case (e.g., attend the originally scheduled interview, overcome a refusal, fail to submit all the required documentation) in a much timelier manner.