April 2023 Visa Bulletin Developments

OVERVIEW

The Department of State released the April 2023 Visa Bulletin.  There are a few notable developments for employment-based applicants:

• USCIS will accept employment-based adjustment of status applications based on Final Action Dates rather than the more favorable Dates for Filing chart that has been used over the past few months.
• EB-1 India retrogresses further to February 1, 2022.
• EB-2 retrogresses for all countries except China.
• EB-3 China advances to November 1, 2018 and EB-3 India advances ahead of EB-2 India.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR FINAL ACTION DATES

USCIS confirmed that it will follow the Final Action Dates chart for purposes of eligibility to file an adjustment of status application.  The Final Action Dates are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
• EB-1 India and China maintain a cut-off date of February 1, 2022. USCIS use of Final Action Dates in April (instead of Dates for Filing) results in retrogression of approximately four months from last month for purpose of eligibility to file an adjustment of status application.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) retrogresses by four months to July 1, 2022. Foreign nationals with a priority date before July 1, 2022 are eligible to file adjustment of status applications.
• China: Final Action dates held steady at June 8, 2019.
• India:  Final Action date retrogress by eight months, to January 1, 2011.

EB-3, Third Preference Category (Professional and Skilled Workers)

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current
• China’s Final Action date advanced by three months to November 1, 2018.
• India’s Final Action date holds steady at June 15, 2012. The EB-3 India Final Action date advance ahead of EB-2 India by seventeen months.

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), the China and India cutoff dates will remain at July 8, 2015 and June 1, 2018 respectively. All other countries remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) remain current.

Individuals with a priority date that is either “current” or before the published cut-off date may file an adjustment of status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As noted in the March Visa Bulletin, due to increased demand, EB-2 final action dates will retrogress for all countries except China to keep immigrant visa number use within the FY 2023 statutory quota. With increased demand and fewer immigrant visas available, further cut-off dates may be implemented for EB-2 and EB-3.

While EB-3 worldwide remains current, retrogression may occur in this category based on predictions made in the March visa bulletin. Given the improvement of EB-2 India Final Action Dates over E-2 India, employers may consider filing downgrades or initial I-140 petitions under EB-3 category to position employees to file adjustment of status applications sooner.

The ability to file adjustment of status applications for employees will continue to be more challenging as the demand for immigrant visas exceeds a dwindling supply. Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications in April, as further retrogression is expected in the months ahead.

For additional information, please contact your designated Gibney representative or email info@gibney.com.