The American Immigration Lawyers Association (AILA) DOS Liaison Committee provides a series of monthly updates designed to keep members informed of Visa Bulletin progress and projections. Immediately following publication of each month’s Visa Bulletin, AILA “checks-in” with Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, to obtain his analysis of current trends and future projections for the various immigrant preference categories. Mr. Oppenheim is responsible for setting the cut-off date for immigrant visa priority date movement each month. Here are his comments about the EB-3 Philippines category:

As noted in the May 2015 Visa Bulletin, EB-3 Philippines will retrogress to July 1, 2007. In prior “Check-in with Charlie” columns, Charlie noted that EB-3 Philippines continued to advance as a result of demand not materializing as expected. Charlie also noted in the November 2014 and February 2015 Visa Bulletins that “corrective” action for EB-3 Philippines might be required later in the fiscal year. In determining the monthly cut-off dates, Charlie relies on comprehensive data from the National Visa Center regarding the number of applicants registered for overseas processing in each preference category, as well as the number of “documentarily qualified” individuals (i.e., applicants who have responded to the Agent of Choice letter, paid the fee, and provided all required documents). Similar advance data from USCIS regarding EB-3 Philippines was not available.

While Charlie had expected, and as mentioned above, previously announced that corrective action for EB-3 Philippines would be required, he assumed that a gradual increase in demand would provide some advance warning. Unfortunately,  That pace, coupled with an increase in demand in the EB-1/EB-2 categories severely limited the EB-3 numbers available for future use.

What can we expect for EB-3 Philippines through the remainder of the fiscal year?

Charlie will establish allocation targets each month and compare them with the amount of demand with early priority dates which has been received. He hopes to advance the cut-off date throughout the summer, but at this time cannot speculate as to the amount of movement. The other variable is whether demand in the other Philippines EB categories will also continue to increase, which would mean fewer unused numbers “falling down” to the EB-3 category. The fall-down was a key factor in enabling EB-3 Philippines to reach the worldwide cut-off date last September.

Here are a couple of interesting things to pull out of Mr. Oppenheim’s comments:

No Advance Data From USCIS

First, Mr. Oppenheim says no advance data was available from USCIS to use in his calculations required to decide when it might be necessary to move the cut-off date back in order to slow down the number of filings. Don’t forget, USCIS processes all green card cases inside the US and the Department of State handles all cases outside of the US–Mr. Oppenheim works for the Department of State.

While this would not have changed the fact that the EB-3 Philippines cut-off date was retrogressed in May (that was inevitable based on the demand he describes), advanced data from USCIS might have led to an earlier retrogression of the date, which in turn might have led to less rock-the-world shock when the date went back more than seven years, ALL AT ONCE!

Mr. Oppenheim points his finger directly at USCIS as being significantly responsible for his inability to manage the cut-off date in a more reasonable fashion. He says USCIS did not provide him advance data; USCIS demand “suddenly increased“; and USCIS asked for 900 visa numbers in the first ten days of April alone. Mr. Oppenheim clearly feels handicapped in his work by his inability to know exactly what is going on at USCIS (a feeling not entirely unfamiliar to many of us in the immigration community). I can see why he’s not happy with them. I wouldn’t be either.

A Little Bit of Backpedaling

Mr. Oppenheim’s comments very much take the tone of “I’ve been telling you this was going to happen” while conveniently omitting any reference to his comments after the April Visa Bulletin was released (read our post about them HERE) which stated, “Mr. Oppenheim predicts there may be another big advancement for EB-3 Worldwide, Mexico, and the Philippines in May.”

I get it. He’s trying to put the best face possible on what has happened. In a way, I kind of feel sorry for Mr. Oppenheim. I’m sure the last ten days have not been fun for him. Would you want to be the guy who sent EB-3 Philippines back into the Dark Ages? I wouldn’t. Especially if a significant part of the problem was the fact that my major partner in the process wasn’t giving me the information I needed to make accurate predictions.

Crazy Demand Blows the Lid off the EB-3 Cut-Off Date

In the six week period leading up to the determination of the May cut-off dates, USCIS demand suddenly increased to just over 2,000, as compared to the approximately 3,275 (approximately 61%) that USCIS used for EB-3 Philippines during the entire previous fiscal year. In fact, during the first ten days of April alone, USCIS requested approximately 900 visa numbers (approximately 27% of what USCIS used for EB-3 Philippines last year).

To be honest with you, that really tells you all you need to know. In one six week period, USCIS alone (don’t forget the many cases processed off shore as well) used over half of all of the visas allocated in this category last year. Had you told me that was going to happen, I would have bet serious money on the probability the EB-3 Philippines cut-off date was going waaay back. More than half of all of the visas used last year gone in just six weeks. Wow!

EB-1/EB-2 Negatively Affecting EB-3

As if an overwhelming demand for EB-3 visa numbers wasn’t enough, it looks like EB-1 (super skilled/specialized/accomplished people) and EB-2 (master’s degree and higher jobs) are siphoning off visas as well. This isn’t surprising, since many people who are tired of languishing in EB-3 have been making the move to EB-2 and up. This has been going on for awhile. No doubt it will continue, if not increase, with the retrogression of the EB-3 category.

Future Predictions

Mr. Oppenheim hopes to advance the cut-off date throughout the summer, but at this time cannot speculate as to the amount of movement. Do you blame him? Between crazy demand in the EB-3 category, increased demand in EB-1 and EB-2, and a lack of cooperation from USCIS in providing relevant data in a timely manner, it’s not difficult to see why it would be difficult to predict future progress in the EB-3 Philippines category. I wouldn’t want the job of doing it.

All we can do at this point is wait for the June, July and August Visa Bulletins to be released and see what progress, if any, the EB-3 date makes. It may actually take until the release of the new visas in October before we get a real sense of where EB-3 Philippines is going. In the meantime, buckle up–it’s going to be a bumpy ride for awhile.