October 2021 Visa Bulletin Insight: Retrogression Likely For Some Categories

In this month’s Chats with Charlie for the October 2021 Visa Bulletin, three main themes were noted.

First, and potentially the most impactful, is the potential retrogression for the EB-3 category for India and China.
Second, there is no expected movement for family final action dates in the coming months, at least until January 2021, and
Third, for all visas, but in particular for Diversity Visas, it’s critical to act in a timeline manner to complete all documentation and be documentarily complete as soon as possible. The diversity visa response rate has been very low.

Each month, the US Department of State hosts a webchat with Charlie Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State. Questions are submitted prior to the live webinar. Additional questions are taken from live attendees. Below is a summary of the webinar, question by question.

What is the difference between being documentarily qualified vs documentarily complete? The terms mean the same thing, that the applicant is ready for processing. The change was made to let the applicant know that everything is complete and ready for potential processing when an interview can be scheduled. Documentarily complete lets applicants more clearly understand that their documents are complete.
In the Sept Visa bulletin, application dates for EB-3 filing for China/India dates were moved back. Why? Each month before determining the final action and application dates, the Department of Travel speaks with USCIS and reviews filings. For the EB-3 category for India and China, submissions will exceed the FY 2022 allotment as of October 2021. As such, dates are retrogressed. Continued monitoring will determine what if any future dates for processing could become available.
Retrogression of employment final action dates could happen as early as November 2020. Would retrogression be in months or years? Can’t estimate employment retrogression but was noted as a potential action in the recent bulletins. At the beginning of October, the retrogression may be required and updated. The idea is to only retrogress once and then if allowed later in the year, dates could move forward. Another consideration is potential legislative action in FY2022 which would take precedent. Do not want to retrogress dates only to advance them later. However, the longer the wait for any corrective action, the further back the retrogression could be. A delay in retrogression may cause a deeper retrogression.
Why did you indicate that retrogression may be required for certain employment final action dates? Under the current act for determining annual limits, the FY2022 employment limit will be approximately 290,000. However, even under that sizeable limit, the highest amount ever, there are already more than enough applicants that have filed in the EB-3 category to use all of those numbers. This action has been taken after a very careful review of current and likely future demand.
September Visa bulletin you stated no retrogression for EB-2 and EB-3. Why did you change it? The best decision is made with information available at the time. However, in recent weeks, discussions with USCIS regarding the amount of worldwide EB-3 cases to be finalized in the next few months combined with final action for cases that have been filed in recent months, the entire situation in India E-3 had to be updated. As more rest-of-world applicants come in for EB-3, the otherwise unused number use is required for other nations. The otherwise unused numbers are what made advancement possible in FY 2021. The overseas posts have the potential to dramatically increase their numbers in the coming months as they catch up on an outstanding backlog due to the pandemic. As such, the visa availability must be constantly monitored, and adjustments made throughout the year.
What happens when an applicant has an EB-2 case pending but subsequently moves to EB-3 for a more advantageous final action date? If case action was originally made with EB-2 number was available but the date retrogressed before the case could be adjusted, USCIS would request an EB-2 visa authorization. It would then be held until the final action date caught up. If originally filed in the EB-3 category but they become available in the EB-2 category, the applicant can file for the EB-2 category and request approval.
I’ve been selected for the Diversity Visa program and submitted documents for Kentucky Counselor Center processing. Haven’t heard anything and the deadline is soon. What can I do? This is one of the many questions on advance submissions. KCC is scheduling as they can to handle submissions. There is no insight into specific location processing time in this webinar. However, it’s very important to act on diversity, or regular, visa category filings in a timely manner. Applicants should not wait until their rank number or party date is about to be reached to complete their documentation. Diversity visas, and all visas, are processed in a first-in, first-out process. Whoever is documentarily qualified or documentarily complete gets scheduled first. Locations are all processing visa applications to their maximum capacity. If you have questions on a specific location, check the Travel.State.Gov website for the latest.
In visa availability projections, you indicate no movement of family final action dates is expected in the coming months. Why not? Family-sponsored and employment final action dates have advanced fairly regularly since March 2020 when COVID started. This was done to ensure filings were available when locations could resume regular processing to maximize number use. However, based on final action dates already released, there is enough demand based on established dates using all numbers for at least the first few months of FY 2022.
Why do Indian applicants have to wait so long for a green card when employment-based applicants from most other countries are being processed under a current preference status? It’s important to remember Immigration guidelines apply a 7% per country limit for which visa issuances. Applicants compete for numbers on a global basis. The 7% limit is intended to prevent a handful of countries from monopolizing all availability. The India and China EB-3 category has been benefitting from ‘otherwise unused numbers’ that have been allocated to India/China. India far exceeds the per-country limits as a result of the availability of otherwise unused numbers. Congress’s intent is if a country does not reach its 7% number and the numbers would otherwise go unused, they are made available to other countries. India EB-1, EB-2, and EB-3 preference categories have far exceeded the normal per-country annual limit. Getting a great benefit from the otherwise unused numbers option.

Live questions:

For those who are documentarily qualified, isn’t there something called ‘expedite’ on the F-4 worldwide, and what are the options? There may be the option to expedite a case but only if it’s within the final action date. Only applicants with a final action date earlier than the current date can be considered for processing. Everyone is treated equally by the use of the final action dates.
What about Haitian petitions documentarily qualified this year? Presuming this is related to the earthquake. It all depends on the post-processing capacity. The embassy is dealing with numerous issues and doing their best for American citizen services, immigrant visas, and nonimmigrant visas. Check travel.state.gov website for Haiti information and processing ability at this time. US Haiti website is the best resource.
Will China EB-3 advance this fiscal year? As mentioned, a retrogression of the China EB-3 could occur as early as November. If and when a retrogression is required, it’s hoped it’s a one-time retrogression and if and when demand would subside, advances in EB-3 would be possible. However, it’s unlikely if a retrogression occurs.
When can we expect a normal interview process? If you are talking about overseas processing, check the embassy website. We still are dealing with host country guidelines about what can be done with entry to the embassy, etc. It’s a post-by-post process. For processing in the U.S. at USCIS processes, check their website. Detailed information is available on the tiered system of priorities on travel.state.gov.
What happened to the 150,000 spillover number? Will it be added to the November bulletin? The 150,000 expected spillover has been added to the normal 140,000 employment limit creating the total 290,000 employment limit. For FY2022, the entire spillover number has been taken into consideration for the employment limit. However, we already have sufficient applications to use all available visa numbers for the foreseeable future.
Question on USCIS processing times. Cannot make comments on USCIS processing times. The call is solely with US Department of State.
What is causing the retrogression for EB-3? The amount of Indian EB-3 applicants who filed last October and November is almost enough to use all of the worldwide EB-3 limits. Therefore, because of the 7% per-country limits, India is limited. This is what will likely cause the retrogression. During October and November of last year, applicant filing was so sizeable, that it did require the retrogression of EB-3 applicant filing dates retrogression back one year, based on an unexpectedly high amount of filings in a very short time. The rest-of-world applicants have increased as well. Processing of such cases has been steadily progressing through the second half of the year and through the summer months, with USCIS processing 7,000 to 8,000 cases a month. Trying to maximize number use to the best of their ability.
Is movement expected in October for F-3? No one should expect any movement before January 2022. No movement on family-sponsored visas for 3-6 months and potentially longer than 6 months. There is sufficient demand that with already established dates, all numbers will be used.
Will Diversity visa numbers pick up in FY2022? The rank cutoffs will continue to advance at a regular pace, consistent with FY2021. They may be accelerated somewhat if posts indicate they have processing capacity. The amount of diversity visa 2022 applicants acting on a case in a timely matter is very low. If applicants want to pursue their diversity, family, or employment visa, applicants should submit documentation in a very timeline manner. Once deemed documentarily complete, that information is reported and considered for the determination of final action dates. It can’t be stressed enough how crucial it is to act in a timeline manner. For Diversity visa 2021 applicants, the response rate was very low in the number of applicants who were selected and notified versus those who submitted the information in a timeline manner. It is critical to submit documents and respond in a timely manner for all visas.
Why not do Zoom interviews when it works with local proceedings? Legally mandated to do in-person interviews. Not legally allowed to do zoom interviews.
When will Mumbai consulate start processing F2A? Go to the US embassy or consulate website and see the most up-to-date information available at that embassy or consulate. All location-specific information is on the embassy or consulate website.
Do you think EB-3 India final action date could reach March 2014 in FY2022? Charlie does not expect that and individuals should be pleasantly surprised if it does. Availability through January is noted in the visa bulletin. It’s critical to rely on published information in the visa bulletin or in the chats with Charlie for making any determinations. Do not listen to blogs, etc. where people are speculating. If changes come about, information is in the visa bulletin to give as reliable as possible information for advance notification to help individuals plan ahead.
A lot of Indian applicants are eligible for EB-2 and EB-3. Can you give us estimates for demands considered together so people don’t need to jump lines unnecessarily? That’s not possible as they are not informed on the number of applicants jumping from EB-2 to EB-3, or vice versa until that action occurs. It’s not possible to change dates based on ‘expected movement. Dates are chosen based on actual filings.
What will Diversity visas look like in 2023? No idea what it will look like in 2023. Can’t predict. If there are updates, they will be posted on social media and the travel.state.gov website.
Inform us when you expect any forward movement on worldwide F4? Do not expect any type of worldwide movement through January. Charlie believes there will be no movement for 6 months or more at this time.
Why do you not consider the processing speed of USCIS but consider the processing speed of consulates when selecting dates? Charlie knows the amount of pending cases at each consulate. This only adds to demand from USCIS. Regardless of the dates chosen, the processing speed of USCIS is the limiting factor. If more advanced dates are announced, it does not affect the ability of USCIS or consulates to actually process applications. So the dates are meant to set expectations for when applications can be processed. If final action dates moved at a faster pace, it would not result in faster number usage or processing. Based on potential retrogression, dates were advanced at a rate sufficient to use all available numbers if there was the capacity to process cases.
What does it mean to be documentarily qualified for an EB downgrade? Is there a checklist? Charlie is not familiar with the downgrade process. Check with USCIS. Downgrade and upgrade questions should be addressed to USCIS. On the state department side, if an applicant is notified to start assembling documents, they are given a list of what documents to gather. Once gathered and reviewed, they would be notified that they are documentarily qualified.

ILBSG continues to monitor monthly visa bulletins and the follow-up chats with Charlie to ensure our clients are informed and have the best and most reliable information to plan their immigration cases. If you have questions about any immigration-related issue, contact us at ILBSG. We put our dedication and expertise to work for you.