The U.S. immigration system continues to grapple with the effects of the Covid-19 global pandemic. In October 2020, priority dates in EB-3 category jumped forward nearly 5 years, allowing hundreds of eligible EB-3 applicants to file adjustment of status or immigrant visa applications. The jump occurred after USCIS and consular office closures caused by Covid-19, which resulted in hundreds of unadjudicated cases and unused visa numbers in Fiscal Year (FY) 2020.
In 2022, many foreign nationals with pending EB-3 applications were faced with retrogression of priority dates in the EB-3 category and advancement in the EB-2 category, forcing them to submit interfiling requests or entirely new adjustment of status applications. Now, two years into the Covid-19 pandemic, USCIS continues to grapple with the effects of the unused visa numbers since 2020, such as the immense amount of adjustment of status applications that were filed and the unpredictable movement of the visa bulletin.
The U.S. immigration system allows for a total of 140,000 immigrant visas or green cards to be distributed each year for applicants and their eligible dependents across five employment-based categories. 28.6% of those visas, approximately 40,000, are allocated toward the EB-1, EB-2, and EB-3 categories, respectively. Any unused visas in the family preference categories are used toward the employment-based preferences.
However, the total number of visas that any country can receive in any given year (whether employment or family-based) is capped at 7% per country. This has caused a major backlog for countries whose nationals submit more immigrant visa or green card applications than the annual numerical limit allows, most notably India and China.
Earlier this year, USCIS announced that nearly all 140,000 visas were unused in Fiscal Year (FY) 2021, and that, as a result, there were approximately 262,288 employment-based visas available in FY 2022. USCIS promised to use all of the available visa numbers before the end of the fiscal year on September 30, 2022. This left many foreign nationals hopeful that their dreams of becoming US legal permanent residents would soon be realized after many years of waiting.
On September 6, 2022, USCIS confirmed that there were no more visas remaining for applicants in the EB-1 or EB-2 categories. While USCIS has begun to send notices notifying some applicants with pending cases that a visa is no longer available for them, there are also many with upcoming I-485 interviews and RFE deadlines who are not sure if a visa number has already been allocated to them.
Unfortunately, any cases that remain unadjudicated after September 30, 2022 will remain in pending status until a visa becomes available based on their country of chargeability and priority date. Although this comes at a disappointment to many, there are several benefits to having a pending adjustment of status application.
Foreign nationals who have a pending I-485 can apply for and continue to renew their employment authorization documents (EAD) or advance parole (AP) travel documents while their applications are pending. In addition, individuals with an I-485 application pending for more than 180 days can benefit from AC21 portability and work for a new employer with their I-485 EAD without having to complete a new PERM process.
Lastly, foreign nationals who filed adjustment of status applications for their dependent children under 21 have locked in their child’s age, and therefore protected them from aging out, if they filed their I-485 application or interfiling request when their priority date was current under Table A, the Final Action Date Chart, of the visa bulletin, or if their priority date ever became current under Table A while their I-485 application was pending, even if their priority date later retrogresses.
As the new fiscal year approaches, the Chugh, LLP immigration team will continue to monitor the progress of the visa bulletin on a month-by-month basis. For any questions or assistance regarding employment-based immigration or adjustment of status, contact your trusted Chugh, LLP immigration professional.
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