December 2022 Visa Bulletin and Immigrant Visa Availability Developments

The Department of State released the December 2022 Visa Bulletin.  There are a few notable developments for employment-based applicants:

• Final action priority dates remain current for all countries in the EB-1 category in December, but the Department of State predicts that EB-1 for China and India will retrogress in the coming months.
• Final action priority dates retrogressed for India in the EB-2 category and a final action cut-off date of November 1, 2022 was established for all countries other than India and China.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR DATES FOR FILING

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

EB-1, First Preference Category

• EB-1 remains current for all countries for now.

EB-2, Second Preference Category

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) has a date for filing cut-off date of December 1, 2022. Foreign nationals with a priority date before December 1, 2022 are eligible to file adjustment of status applications.
• China: The cut-off date for filing held steady at July 8, 2019.
• India:  The cut-off date for filing held steady at May 1, 2012.

EB-3, Third Preference Category (Skilled Workers)

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current in December.
• China’s cut-off date for filing advanced to September 1, 2018
• India’s cut-off date for filing advanced to August 1, 2012.

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.

EMPLOYMENT-BASED FINAL ACTION DATES

While an individual may file an adjustment of status application in December using the dates for filing summarized above, an individual’s green card application may not be approved until the priority date is available under the final action dates, also posted on the Visa Bulletin.   The final action dates may differ significantly from the dates for filing, depending on the preference category and country of birth.   The December 2022 Final Action Dates are as follows:

EB-1, First Preference Category

• EB-1 remains current for all countries for now.

EB-2, Second Preference Category

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) has a final action cut-off date of November 1, 2022.
• China: The final action cut-off date remains the same at June 8, 2019.
• India:  The final action cut-off date retrogressed to October 8, 2011.

EB-3 Third Preference Category (Skilled Workers)

• Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current in December.
• China’s final action cut-off date advanced to August 1, 2018.
• India’s final action cut-off date advanced to June 15, 2012.

WHAT SHOULD EMPLOYERS EXPECT?  

As reviewed in our Fiscal Year 2023 visa availability analysis, we are starting to see the impact of fewer immigrant visas being available in fiscal year 2023. Further retrogression for Indian nationals in the EB-2 category, establishment of cut-off dates for worldwide in the EB-2 category, and retrogression forecasts for India and China in the EB-1 category, are the unfortunate result.

The ability to file adjustment of status applications for employees will be more challenging this year than last. Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications in December. Additionally, it will be particularly important to file adjustment of status applications for Chinese and Indian nationals qualifying in the first-preference category given projected retrogression for the months to come.

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