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Why it is impossible right now to predict cutoff date movement

Discussion in 'General immigration questions' started by Ron Gotcher, May 27, 2009.

  1. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I posted this reply to a question concerning predicting cutoff date movement. A number of readers asked that I post it as a "sticky" so that it is easier to find.



    One of the more frustrating things for me is seeing all of the requests, like this one, for information about visa cutoff date movement. It is frustrating because I know how important this information is to the people who post, but I also know how difficult it is to even speculate on movement.

    Until very recently, it was relatively easy to predict future cutoff date movement. The important variables were known and it was easy to make a calculation that would give at least a close approximation of the likelihood of forward movement. That has changed.

    For years, the INS/CIS failed miserably to do their job. They approved an embarrassingly small number of AOS applications each year. The result was that they wasted hundreds of thousands of allocated quota numbers. As you should know, if a visa number is not used in the year for which it is allocated, it is lost forever. Unused visa allocations do not carry over into the next year. The CIS Ombudsman, after investigation, estimated that the INS/CIS wasted more than 600,000 allocated visa numbers between 1996 and 2006 because they failed to approve enough pending AOS cases to use up all of the allocated visas.

    It is important to understand that the State Department, which has the legal authority to regulate the issuance of visas under the quota, uses a "cutoff date" system to keep things fair. That is, they determine how many visas are available in a given category for a particular month and then they look at the waiting list to see how many people on the waiting list can be accommodated that month. The waiting list is arranged by priority date. If, for example, they determine that there are 1,000 visas available in a category in a particular month, they go to the oldest priority date and count forward 1,000, look at the date, and make that the "cutoff date" for that month. This is an oversimplification, but it should serve to get the point accross.

    Starting in 2006, the State Department stepped up and began to artificially advance cutoff dates in order to prevent further waste of visa numbers. They determined that the CIS was not going to approved enough AOS cases to use up the entire EB quota for that year. Since it was possible for the overseas consular posts to act very quickly, and also handle large volumes of cases, the State Department moved the cutoff dates forward beyond where they would have been normally.

    Let me take a moment to explain this. By way of hypothetical example, let's say that the State Department determined that demand for visas was such that they could set the EB 3 cutoff date for June, 2007 at August 1, 2002. This would mean that there were enough visas available for issuance in the month of May to accommodate everyone who applied for an immigrant visa (through AOS or consular processing) with a priority date of August 1, 2002 or earlier.

    Now, looking at the rate of CIS processing, they also (hypothetically) determined that by limiting applications only to those with priority dates earlier than August 1, 2002 the CIS would fall far short of exhausting the quota. On the other hand, if they could induce more people to apply overseas, they would have enough applications on file to allow the consular posts to pick up the slack left by the CIS and (hopefully ) fully exhaust the quota. The result, no wasted visas - the entire quota would be used.

    As a result, they moved the cutoff date up to June 1, 2005 instead of August 1, 2002. The result? More visa applications were filed. Unfortunately, about 85% of all EB green card applicants elect the slower AOS process. This meant that when the State Department advanced the cutoff date to attract new applications, only about 15% of those new applications were sent to consular posts. This was not enough to make up the difference between inadequate CIS productivity and the full quota. As a result, for July they decided to make everyone "current" in order to get enough applications on file to exhaust the quota and prevent further waste of allocated visas.

    This strategy worked, at least as far as preventing further waste of allocated visas was concerned. It also resulted in the CIS adjustment of status backlog growing by an additional 350,000 cases. No one really knows just how large that backlog really is today. The CIS treats it as a matter of national security. The State Department asked for this information almost a year ago and the CIS still hasn't delivered. DHS Secretry Napolitano ordered the CIS to produce this information last February and she is still waiting for it. Most estimates, however, put the total number of unadjudicated employment based I-485 applications at somewhere around half a million.

    In the last year and a half, it appears that the CIS has finally gotten serious about AOS adjudications. After being humiliated by the State Department in July 2007, they began working on improving their rate of production. In 2008, for the first time in the history of their agency, they approved more than 100,000 cases in a single year. This year, it looks as though they will approach 140,000.

    Because the CIS has finally started doing their job, visa cutoff dates have not moved forward. Indeed, they have retrogressed. You have to remember that the cutoff date is simply the nexus of supply and demand. The supply is a known quantity, derived from the annual quota and the formula used for allocating visas among the different preference categories throughout the year.

    Demand, however, is a variable that depends on both the actual number of applications filed, and more importantly, the rate at which the CIS processes them. No matter how many cases get filed, if the CIS doesn't process any of them, then demand is zero. Since more cases have been filed than have been processed, CIS productivity determines demand. Currently, the CIS appears to be processing cases at a rate that will fully exhaust the annual quota.

    The problem is that the backlog of EB AOS cases is so enormous and the CIS absolutely refuses to disclose any information about it. We have no idea, for example, how many worldwide EB3 are pending with priority dates earlier than 1/1/2001, or earlier than 1/1/2002, or earlier than 1/1/2003 (and so on). If we did, then it would be a very simple matter to take those numbers and subtract them from the known quota availability and make a close approximation of the actual expected waiting time for a specific application.

    Let me cite another hypothetical example. Let's say that someone has a priority date of July 1, 2007 (preference unspecified for purposes of this example). Let's further simplify things by putting this person in the worldwide category. Let's also assume that under the quota, there are approximately 3,500 visas available in this category per month.

    If we know that there are 4,600 people with 2001 priority dates, 10,900 people with 2002 priority dates, 17,400 people with 2003 priority dates, 23,600 people with 2004 priority dates, 33,000 people with 2005 priority dates, 43,300 people with 2006 priority dates, and 22,200 people with priority dates in the first half of 2007, then we know that there are about 155,000 people with priority dates earlier than our applicant. If there are 3,500 visas available each month, then we know it will take about 44 months for our applicant's priority date to become current.

    Unfortunately, we have absolutely no idea as to even how many applications are pending, much less a breakdown of their preferences and priority dates. Without this information, it is flatly impossible to predict any kind of forward movement.

    I apologize for being so wordy, but I wanted to try to explain why it is not possible to predict movement with any accuracy.
     
  2. masupra

    masupra Member

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    Re: Why it is impossible right now to predict cutoff date movement

    Dear Ron, thanks for the analysis. I've heard rumors about USCIS allowing people with certain qualifications (e.g. I-140 approved) to file I-485 before their dates are current. I wonder if could give us some insights on it?
     
  3. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Why it is impossible right now to predict cutoff date movement

    That is a wholly false rumor. The law is explicit: you may not file for AOS unless your priority date is current.
     
  4. whatnow

    whatnow Junior Member

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    Re: Why it is impossible right now to predict cutoff date movement

    What about Consular Processing? I have an approved I-140. My attorney says I must wait till my priority date becomes current before I can file for AOS or CP.
    So do I just sit and watch the priority dates or can I send in my application for CP and wait for CIS to process it when the PD is current.

    Thanks Much!
    -J
     
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Why it is impossible right now to predict cutoff date movement

    You need to speak with your own attorney about this. Generally, however, one can designate CP on the I-140. When it is approved, the NVC will begin processing your case before your priority date is current.
     
  6. Rada

    Rada Junior Member

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    Re: Why it is impossible right now to predict cutoff date movement

    One thing bothers me, though:

    Suppose the Service has a set of AOS cases, and since they've been finally doing their job, the dates move only slowly, reflecting the supply and demand. But eventually, the set of case will be exhausted, because no new applications could be filed during all this time.

    This will create a shock, since there will be a point when the Service has no cases on hand (at least in some categories), so according to this business rule of supply/demand, the next thing the DOS has to make the category current, and ALL the cases that were kept behind the dam since 2007 will suddenly rush-in, creating another visa fiasco.

    What I'm getting at, is the improved efficiency of the CIS makes things cyclical, it seems. We are either going to have short blips when categories are current, and years in between when they are severely retrogressed.
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Why it is impossible right now to predict cutoff date movement

    No, not really. The Director of the TSC said last week at the annual AILA conference that his center and the NSC had "pre-adjudicated" about 110,000 to 120,000 cases so that they will be ready when the new quota becomes available October 1st. What is interesting is that he strongly implied that between those cases approved for this fiscal year and this new set, that pretty much exhausted their inventory of EB AOS cases. I find that hard to believe, but that is what he said.
     
  8. SeanD

    SeanD Senior Member

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    Re: Why it is impossible right now to predict cutoff date movement

    Ron,

    Did you find anyting at the conference that gave you an idea about OCT cutoff dates and how the cutoff dates wound move next year?

    So according to them 120K is the total EB backlog ?
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Why it is impossible right now to predict cutoff date movement

    They certainly implied that the 120,000 cases constituted their entire EB AOS backlog. I'll believe that when I see it. Taking them at their word that they have adjudicated "110,000 to 120,000" EB AOS cases, that would mean that we would see EB cutoff dates return to the levels they were at around February, 2007.

    Another thing that was mentioned was that because EB4 and EB5 visa demand has been heavier than historic levels, fewer visas are "falling up" to EB1. This, in turn, means fewer visas to "fall down" into EB2.
     
  10. SeanD

    SeanD Senior Member

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    Re: Why it is impossible right now to predict cutoff date movement

    This is very strange as Charles Oppenheim had said at the May 20, 2009 American Immigration Lawyers Association (AILA) meeting according to current estimates there are approximately 200,000 I-485 applications currently pending with USCIS, 120,000 of them are chargeable to India.

    So the backlog is 120K AND ALL cases are 200K, does not make sense...

    All these crazy numbers are coming but we are still stuck for years and years.

    Ron when is your next Newsletter coming up?
     
  11. SeanD

    SeanD Senior Member

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    Re: Why it is impossible right now to predict cutoff date movement

    I checked February 2007 VB and for example EB3 cutoff date is 01 AUG 02.

    So the dates would go back to 2002 as on the Feb 2007 VB OR did you mean that cutoff dates would move to year 2007?
     
  12. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Why it is impossible right now to predict cutoff date movement

    I should have been clearer. I mean that they will likely move to 2007 by the end of FY 2010 (Sept. 30, 2010)
     
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Why it is impossible right now to predict cutoff date movement

    The newsletter is now posted and available for viewing. If you haven't yet seen the new "Notices" feature in the forum, check it out. It appears at the top of each page. Right now, there is a link to the new Newsletter.
     
  14. Sam7768

    Sam7768 Junior Member

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    Re: Why it is impossible right now to predict cutoff date movement

    Hi Ron,

    Excellent news letter.

    Just one question: At the end, it says India EB-2 outlook is grim for 2010. Does that mean, it will be worst than India EB-3 ? i,e EB-2 India goes back to late 1990s come this Oct? :eek:

    Rgds,
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Why it is impossible right now to predict cutoff date movement

    What I forgot to include was the full explanation. They said that EB2 gets a substantial amount of numbers from EB1 "falldown". The precise amount of numbers available depends on how many left over EB4 and EB5 numbers are available to "fall up" to EB1. They said that due to increased demand in EB4 and EB5, there are fewer numbers "falling up" into the EB1 category. Accordingly, there are fewer EB1 numbers to "fall down" into the EB2 category.

    They said that due to increased demand and the CIS backlog reduction efforts, it is unlikely that we are going to see any forward movement of EB2 China and India cutoff dates for a while.
     
  16. JStick

    JStick Member

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    Re: Why it is impossible right now to predict cutoff date movement

    I like how USCIS works for ROW. So EB4/5 "fall up" to EB1. Then EB1 "falls down" to EB2. But ofcourse, EB2 then falls "horizontally" to EB2 I/C and not "down" to EB3. Yeah that makes sense. This would be funny if it wasn't that sad for us EB3 ROW folks.
     
  17. raghuvap

    raghuvap Junior Member

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    Re: Why it is impossible right now to predict cutoff date movement

    Ron,
    Do you want to take a swag at what the cutoff date for EB2-India would be come Oct 2009?
     
  18. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Why it is impossible right now to predict cutoff date movement

    I'm optimistic, but not for this year. The unusual demand we have seen in EB4 and EB5 was due to the scheduled sunset of aspects of those categories and people rushed to file. I could be wrong, but I expect to see a return to normal filing patterns now that the programs have been extended and there is no longer a need to rush.

    Also, if the CIS can be believed, they will have cleaned out all of their pending EB AOS cases by the end of next month. That means that they will have either adjudicated or pre-adjudicated all cases on file. This, in turn, means that all Indian EB2 cases on file as of June 2009 will have been resolved. According to the CIS, cleaning out the cupboard wiped out this year's quota and will use up between 110,000 and 120,000 EB visas for next fiscal year.

    If all Indian EB2 AOS cases filed through, say a month ago, are included in this number, then there is room for considerable optimism. Historically, with "fall across" from worldwide EB2, India EB2 gets about 15,000 visa numbers per year. This should leave about 4,000 to 5,000 for use between now and September 30, 2010. That should advance the cutoff date considerably - particularly considering that all pending cases will have been resolved. Starting October 1, 2010 there should then be a considerable number of visas available.

    Going out on a limb (and assuming no CIR), by October 1, 2011 I think that Indian EB2 should be backlogged no more than two years (i.e., Sept. 2009 cutoff date). Also, that is purely a swag, not something that is the product of detailed analysis.
     
  19. SeanD

    SeanD Senior Member

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    Re: Why it is impossible right now to predict cutoff date movement

    Ron,

    Your newsletter referrence DOL and USCIS officials that gave out certain information and likley predictions for visa date movement.

    Were these statements made to the public in general or in private conversations with you or your staff?

    I think the likely visa date movement matches exactly EXCEPT the EB3 WW catogery (comparing What was disclosed at AILA meeting and What Mr. Charles O published on AILA website).

    Thanks
     
  20. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Why it is impossible right now to predict cutoff date movement

    I heard that EB3 comment in a private conversation with the guy who offered it after the panel presentation.
     

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