Immigrant Visa Availability in FY 2023 and the October 2022 Visa Bulletin

October 1, 2022 marked the start of the federal government’s fiscal year 2023 (FY 2023), with the Department of State (DOS) October Visa Bulletin taking effect the same day.

What is sure to be disappointing to many is the significant retrogression in the availability of immigrant visas (“green cards”) for Indian nationals in the employment-based second preference (EB-2) category.  Moreover, the availability of immigrant visas for all employment-based applicants will be fewer this fiscal year than last.

Annual Immigrant Visa Quotas and Retrogression – Some Background

Each year, by statute, 140,000 employment-based immigrant visas (green cards) may be issued to qualified applicants, plus any unused visas from the family-based categories in the preceding year. The visas are distributed among five employment-based (EB) preference categories and then allocated by country of birth according to Congressionally-mandated per country quotas. The employment-based preference categories are summarized in the monthly Visa Bulletin. Visa retrogression occurs when the number of individuals seeking a green card exceeds the number of visas available in the applicable employment-based preference category.  A “cut-off date” is then set and published in the Visa Bulletin. A queue to apply for the green card ensues and a foreign national is assigned a place in line based on their priority date, preference category, and country of birth.

For employment-based immigrants, the priority date is determined by the date that a PERM labor certification application is filed with the U.S. Department of Labor (DOL) for the sponsored foreign national employee.  In instances where a PERM labor certification is not required (e.g., for EB-1 petitions and EB-2 National Interest Waiver petitions), the priority date is determined by the date that an I-140 immigrant petition is filed with U.S. Citizenship and Immigration Services (USCIS).  In order for a foreign national to apply for a green card, their priority date must be available or “current” on the monthly Visa Bulletin.  An immigrant visa number is only available when the priority date is earlier than the cut-off date shown on the Visa Bulletin for the applicable preference category and country of birth.

Historically visa retrogression has been most severe for foreign nationals born in India and to a lesser extent, China, as the demand from nationals from these countries often exceeds statutory quotas. The result has been a multi-year wait for green card issuance for these individuals.

Immigrant Visa Availability in FY 2023 v. FY 2022

Retrogression for Indian nationals in the EB-2 category in October comes on the heels of a record numbers of immigrant visas being issued in FY 2022.  In FY 2022, DOS was able to allocate 281,507 immigrant visas for the employment-based categories, more than twice the annual statutory quota of 140,000, due to unused visas in the family-based categories from the prior year spilling over to the employment-based categories.  Family-based visas went unused largely due to the pandemic and the Trump administration bans on the issuance of immigrant visas abroad during the pandemic.

According to USCIS FAQs, the employment-based annual limit for FY 2023 will be higher than it was pre-pandemic, but lower than it was in FY 2021 and FY 2022.  DOS estimates that the FY 2023 employment-based annual limit will be approximately 200,000 immigrant visas, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023.

With the projected reduction in the number of employment-based immigrant visas available in FY 2023, USCIS and DOS collaborate to control the allocation on a monthly basis through the Visa Bulletin, taking into consideration numerous factors including, but not limited to, the inventory of adjustment of status applications already pending with USCIS and whether they can be advanced to approval in the fiscal year, the projected percentage of applications that will not be approved, and the number of applications for the same individual but in different categories, with the stated aim of issuing as many of the available visas as possible within the fiscal year.

With these factors in mind, DOS sets cut-off dates for each preference category as needed, and USCIS determines whether applicants must follow the monthly “Dates for Filing” chart or the “Final Action Date” chart on the Visa Bulletin.

October 2022 Visa Bulletin Dates

With the publication of the October 2022 Visa Bulletin, USCIS determined that applicants may use the “Dates for Filing” chart to determine eligibility to file adjustment of status applications.  The “Dates for Filing” chart allows applicants to file their green card applications, but the applications cannot be approved until an immigrant visa is available based on the “Final Action Date” chart.

The October “Dates for Filing” for the most commonly used employment-based categories are:

EB-1 Priority Workers: 

All countries are “current.”  Individuals from all countries seeking an immigrant visa pursuant to a permanent resident petition (I-140) filed in the EB-1 category may apply.

EB-2 Members of the Professions Holding Advanced Degrees/Persons of Exceptional Ability:  

All countries except China and India are current.

China’s cut-off date is July 8, 2019.

India retrogresses by more than two years, to May 1, 2012.

EB-3 Professional and Skilled Workers:

All countries except China and India are current.

China advances to July 15, 2018.

India advances to July 1, 2012.

The UPSOT

According to DOS, the forward movement of the India priority dates experienced during FY 2022 was due to the unprecedented high number of immigrant visas available in FY 2022.  With the advancement of priority dates in FY 2022, a heavy applicant demand ensued.  This persistent demand (in the form of pending applications – those that were not approved before the annual quota was reached) coupled with significantly lower visa number availability forecasted for  FY 2023 as compared to FY 2022, required DOS to take corrective action to keep  immigrant visa issuance within the maximum allowed under the FY 2023 annual limits.  The retrogression of priority dates is the “corrective action.”

Unfortunately, this means that many Indian nationals who were able to apply for adjustment of status in FY 2021 and FY 2022 now find themselves with pending applications that cannot be approved for the foreseeable future.  While these individuals and their dependent family members (spouse and children under age 21) are eligible for work and travel authorization while their adjustment of status applications are pending, and in some instances have flexibility to change jobs,  they remain in a status limbo, and may face the prospect of their dependent children turning 21 and “aging out” of eligibility for a green card.

Looking Ahead

DOS will soon release the November Visa Bulletin. Dramatic changes from October’s Visa Bulletin are not expected. DOS will continue to monitor the inventory of pending green card applications with USCIS and  the number of immigrant visas issued  to date, and will adjust the Visa Bulletin cut-off dates as appropriate in the months ahead.

Gibney will continue to watch these developments and will provide updates as they become available.  For additional information, please contact your designated Gibney representative, or email info@gibney.com.

The author wishes to thank Law Clerk Jesse Wang for his contributions to this alert.