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USCIS Sets September 2022 Adjustment of Status Filing Charts For the Visa Bulletin

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Pasricha & Patel 

With the U.S. Department of State’s publication of the September 2022 Visa Bulletin, the USCIS has once again confirmed that it will continue to follow the Final Action Dates for Employment-Based Adjustment of Status Applications for the September 2022 Visa Bulletin.

USCIS also confirms that it will continue to follow the Dates for Filing for Family-Sponsored Adjustment of Status Applications for the September 2022 Visa Bulletin as family-based immigrant visa usage continues to grow as U.S. consulates move toward normal operations.

Of interest here is that in Department of State’s visa bulletin notes, it mentions that it has seen a steady increase in both the USCIS and Department of State demand patterns for employment-based visas in this current fiscal year. In fact, Department of State expect the visa numbers for most employment-based preference categories to be reached during September. Importantly, if at any time an annual limit of the vis numbers were reached, Department of State will immediately make the preference category ‘unavailable’, and no further requests for numbers would be honored. But note that the visa numbers would reopen with the start of the new fiscal year 2023 in October 2022.

Once again, the Department of State has established final action date in the F2A category (which is for spouses and children of lawful permanent resident) in the September 2022 Visa Bulletin. Specifically, Final Action Date of for Mexico has been set for April 22, 2019, while all other countries remain ‘Current’ for the month. Department of State explains that based on previous months’ forecast of visa number usage, it was necessary to establish a final action date to control further use of the 75% of F2A numbers exempt from per-country limits under INA. Department of State further explains that it will continue to monitor F2A numbers, with the expectation that numbers exempt from the per-country limit are expected to again become available for all applicants starting October 1, 2022, under the Fiscal Year 2023 annual numerical limitations.

This development should not be a surprise because the Department of State has been forecasting this development for the last few months now.

On the employment-based visa category aspect, the employment-based 3rd visa preference category for India and China for the month of September 2022 visa bulletin all remained stagnant. In fact, there was no movement forward of visa dates in the EB-2 India visa preference category under the Final Action Dates for Employment-Based Preference Cases. There was also no movement forward for EB-2 China visa preference category as well.

In the September 2022 visa bulletin, EB-3 India remained at February 15, 2012, while EB-3 China also remained at April 22, 2018.

In the September 2022 visa bulletin, EB-2 India still shows visa availability before December 1, 2014. This remained unchanged from the August 2022 visa bulletin.

As a further reminder, these slow to non-existent visa movements in the EB-3 category are expected to continue to last for the foreseeable future, and it is the result of previous months of rapid advance movement in the EB-3 visa preference category for two (2) countries - China and India. There was heavy demand for EB-3 visa numbers in FY 2021. As a result, it greatly outstripped the monthly quota numbers, and it has resulted in retrogression for both India and China starting in the November 2021 visa bulletin and it has continued to remain in retrogression to the present and it is projected to last for the foreseeable future as well.

It should be noted that the September 2022 EB-1 visa preference category continues to remain Current for both China and India, along with all other countries.

Meanwhile, EB-2 China’s Final Action Dates for Employment-Based Preference Cases for the month of September 2022 also remained the same as the August 2022 visa bulletin date of April 1, 2019.

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 this current fiscal year 2022. Meanwhile, the EB-3 visa filing dates would show little to no movement for the upcoming fiscal year.

With the EB-2 dates stagnant, this appears to confirm the Department of State’s previous prediction about EB-2 visa usage remaining strong, which means that EB-2 visa numbers will likely be used up to annual limit in September 2022 and at any given moment.

Now, Department of State has signaled that because the demand for EB-2 visas remains stronger than usual (note: this has also been spurred by the separate USCIS announcement that it is encouraging applicants to file employment-based petitions using the EB-2 visa preference category, if eligible) that there will likely be a stoppage to the forward movement of the EB-2 visas, with great likelihood that the EB-2 visa would become ‘unavailable’ in September 2022 and at any given moment. It is evident that EB-2 visa forward movement is already slowing down in these last few months. It goes without saying that this particular visa category warrants continuous monitoring in the coming months and into the fiscal year 2023 too.

The reason for the stagnant movement in the EB-3 India and China visa preference category is due to the fact that applicants in those particular visa categories had previously filed for EB-2 to EB-3 visa preference category downgrades with the USCIS. But they most likely would have retained their initial EB-2 I-140 approvals as well. However, with the EB-2 visa movement also slowing down and likely to become ‘unavailable’ in September 2022, the EB-2 and EB-3 India and China visa users are likely facing the possibility of retrogression too.

For the month of September 2022, the Employment Fourth Preference Certain Religious Workers (SR) category continues to show ‘Current’ for all countries, with the exception of Mexico, El Salvador, Guatemala, and Honduras.

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’.

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 December 22, 2015 in that category, which represents one (1) month forward movement from the August 2022 visa bulletin. Meanwhile, application filing date for C5 (which is set aside for employment creation outside a targeted are), and T5 (which is set aside for employment creation with employment creation outside the targeted area) for Chinese born applicants as well as applicants from around the world still remain ‘Current’. All reserved categories are ‘Current’ for all countries in the September 2022 visa bulletin as well.

As the visa bulletin filing dates continue to slow down in Fiscal Year 2022, 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 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.

As the monthly visa bulletin continue to show nuanced movements, we do encourage you to check in this space regularly for any further updates.

Should you wish to discuss your case matter specifically, we encourage you to contact our office and schedule an appointment so we can assist you further.