USCIS Sets May 2023 Adjustment of Status Filing Charts For the Visa Bulletin
Law IMM Analysis:
With the U.S. Department of State’s publication of the May 2023 Visa Bulletin, the USCIS has decided it will continue to use the Final Action Dates for Employment-Based Adjustment of Status Applications table. This is a continuation from the April 2023 visa bulletin’s filing table. This is also a reflection of the tightening in the visa numbers in employment-based immigrant visas in general, with EB-2 retrogression for Rest of the World Countries, as well as India, Mexico, and the Philippines, and not to mention further retrogression in the EB-4 category for all countries.
USCIS also confirms that it will continue to follow the Dates for Filing for Family-Sponsored Adjustment of Status Applications for the May 2023 Visa Bulletin as family-based immigrant visa usage continues to grow as U.S. consulates move toward normal operations.
As previously predicted by DOS in its December 2022 visa bulletin, it has established Final Action Dates for both India and China starting in January 2023 for EB-1 visa preference category. This continues in the May 2023 visa bulletin as well. For the Final Action Dates table, India’s visa availability date for EB-1 category remains on February 1, 2022, while China’s EB-1 visa availability date is also set for February 1, 2022. Meanwhile, the EB-1 visa preference category for World, and Mexico, and the Philippines all continue to remain ‘Current’ in the Final Action Dates table.
Furthermore, in the May 2023 visa bulletin, U.S. Department of State also forecasted that due to continued high demand for visa numbers in the EB-1 category, retrogression is likely for India and China in the coming months as well.
U.S. Department of State is trying hold number usage within the maximum allowed under the Fiscal Year 2023 annual limit. This situation is being monitored carefully, and Department of State will make necessary adjustments moving forward.
In light of above notification, for India EB-2 the visa cutoff date for May 2023 visa bulletin in the Final Action Dates table has continued to remain retrogressed to January 1, 2011. Meanwhile, India EB-3 visa cutoff date does remain on June 15, 2012 in the Final Action Dates table for May 2023 visa bulletin.
In the May 2023 visa bulletin, U.S. Department of State also warns that due to continued high demand in the EB-2 and also EB-5 visa numbers, there will be further retrogression for India EB-2, as well as EB-5 Final Action Dates starting as early as in the June 2023 visa bulletin in order to keep the visa numbers at least still available. The plan is for the October 2024 visa bulletin to return the final action dates to the final action date level announced back in April 2023.
Furthermore, U.S. Department of State also had to retrogress the EB-2 visa numbers for Rest of the World; Mexico; and the Philippines in order to keep the visa usage within reasonable levels. In fact, their visa numbers have retrogressed to February 15, 2022. U.S. Department of State also notes that this situation needs to be continually monitored and adjustments will have to be made, if necessary.
U.S. Department of State also mention that due to higher than expected visa number usage in the EB-3 “Other Worker” category, this will likely mean further adjustments in the “Rest of World”, “Mexico”, and “Philippines’s final action dates in the coming months in order to keep the immigrant visa numbers still available through September 30 2023. This situation needs to be continuously monitored by U.S. Department of State.
And in continuation of the April 2023 visa bulletin, U.S. Department has continued to establish Final Action Date in the F2A (spouse and children of permanent resident) for all countries in the May 2023 visa bulletin. For China, and India, and the Philippines, and the Rest of the World, the visa availability date continues to be September 8, 2020. For Mexico, it is now November 1, 2018. This development was forecasted in earlier visa bulletin by the U.S. Department of State, in order to keep the usage of visa numbers steady and within annual limit. Any further changes in this category certainly requires close monitoring.
Back on the employment-based visa category aspect, in the Final Action dates chart, the employment-based 3rd visa preference category for India and China for the month of May 2023 visa bulletin had some minor movements versus the April 2023 visa bulletin. For EB-3 China, the visa cutoff date moved ahead to April 1, 2019. For EB-3 India, the visa cutoff date remains on June 15, 2012.
In the Final Action dates chart, in the EB-2 China visa category, the cutoff date has remained on June 8, 2019 in the May 2023 visa bulletin.
Separately, in the Dates for Filing chart, for EB-2 China, the cutoff date continues to be set at July 8, 2019, while EB-2 India’s cutoff date also remains on May 1, 2012. With the USCIS choosing to use the Final Action Dates table for employment-based adjustment of status applications, it is hard to see when USCIS would change back to using the Dates for Filing Applications table or anytime in the near future.
As Department of State’s latest notes provided in the May 2023 visa bulletin indicates, the slower visa movements in the EB-2 category are expected to continue to last for the foreseeable future, and it is the result of previous months in Fiscal Year 2022 of high demand in the EB-2 visa preference category for two (2) countries - China and India, and now the Rest of the World as well.
More specifically, Department of State has continued to forecast that due to higher than expected number use and demand, it will necessitate corrective action in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. Department of State specifically pointed to the EB-2 visa category for all countries (including China and India) for the need for continuous monitoring in the next few months to come.
In fact, Department of State also raised the same warning about EB-4 preference category and how due to increased demand may necessitate the establishment of worldwide final action date (including Mexico and the Philippines) in the coming months to hold numbers within maximum allowed under the current Fiscal Year 2023 annual limit. Department of State advised readers to monitor this situation along with Department of State in the next few months should adjustments become necessary.
These visa number movements are consistent with the projections that the Department of State had first provided back in October 2021 in which it forecasted that EB-2 visa filing dates would progressively move ahead in months at the onset, but will start to slow down as the months progress in the previous fiscal year 2022 and has finally retrogressed at the start of the FY 2023 visa bulletin. Meanwhile, the EB-3 visa filing dates would continue to demonstrate slow and steady movement for the fiscal year starting in October 2022 and for the foreseeable future.
It should also be noted that due to higher than expected visa usage in the Employment-based Third (3rd) Preference “Other Workers” category, in particular by those applicants with earlier priority dates, it has necessitated the U.S. Department of State to maintain retrogression of the Worldwide Final Action date on January 1, 2020.
It goes without saying that all these different visa categories warrant continuous monitoring in the coming months and into the fiscal year 2023 too.
Finally, on the EB-5 immigrant investor visa category, a reminder once again to readers that the Department of State’s visa bulletin for EB-5 preference category has also been updated to reflect the new provisions of the EB-5 Reform and Integrity Act (RIA). It now has two (2) pools of visa numbers within the EB-5 category. One is reserved for certain set-aside categories while the remaining available numbers remain ‘unreserved’.
In the Final Action Dates chart, the employment-based 5th preference category Unreserved is ‘Current’ for all countries, except for China-mainland born, which is subject to a final action date of September 8, 2015 in the EB-5 Unreserved category. It had visa cutoff date of July 8, 2015 in the April 2023 visa bulletin as well.
Furthermore, EB-5 Unreserved category for Indian nationals in the Final Action dates chart is now subject to cutoff date of June 1, 2018. It had the same cutoff date of June 1, 2018 in the April 2023 visa bulletin as well. In March 2023’s Visa Bulletin notes, the Department of State had warned that further retrogression for this category for Indian nationals may become necessary and this situation must be continuously monitored in the coming months.
Meanwhile, in final action dates chart for EB5 Set Asides (which covers Rural, and High Unemployment, and Infrastructure areas) for Chinese born applicants as well as applicants from around the world still remain ‘Current’.
As the visa bulletin filing dates continue to move ahead in Fiscal Year 2023, we also encourage readers to continue to check back with our site for any updates regarding this and any other latest immigration news and developments.
Department of State also included reminder notes again about the Diversity Immigrant Visa category. It confirms that entrants registered for the DV-2023 program did undergo random selection and those who were picked in the lottery would now be able to login to DV-2023 diversity designated website and begin preparations to submit immigrant visa applications by following procedures to do so. It should be noted that all eligible DV-2023 visa applicants must receive their immigrant visas (or adjust status, if they are present in the United States) by September 30, 2023. If they do not receive their immigrant visas (or adjust their status in the U.S.) by September 30, 2023, then they would lose their chance to do so, and they will have to pursue lottery registration next year again.
While the monthly visa bulletin is showing slower movement in visa cut off dates, we do encourage you to check in this space regularly for any further updates.
Pasricha & Patel’s Immigration Department has extensive experience in handling business and personal immigration matters. Our team is happy to speak with you on your specific issue.