Breaking down the USCIS Joint Status Report in Madhavan v. Jaddou
On Sept. 6, 2022, U.S. Citizenship and Immigration Services (USCIS) released new information in a court-ordered Joint Status Report about the employment-based (EB) green card backlog for I-485 Adjustment of Status (AOS) applications.
The court case is the result of a class action complaint filed against USCIS earlier this year after the agency was unable to use over 66,000 available employment-based green cards before they expired at the end of fiscal year (FY) 2021.
The report reveals that the U.S. government will issue all 281,000 available employment-based green cards before the government's fiscal year ending Sept. 30, 2022.
Why the Joint Status Report Matters
FY 2022 marks the highest number of employment-based green cards issued in a single year, including an estimated 60,000 AOS approvals for EB-2 applicants from India and 12,700 approvals for EB-3 applicants from India, according to the report.
USCIS notes in the report that as of Sept. 6, 2022, there are no green cards remaining in FY 2022 for applicants from any country of chargeability in EB-1 or EB-2 preference categories. By Sept. 9, 2022, there will be no green cards remaining for AOS applicants for the EB-3 preference category.
The October 2022 Visa Bulletin: What You Should Know
The U.S. Department of State (DOS) released the October 2022 Visa Bulletin on Sept. 7, 2022, earlier than anticipated and likely because of the release of the report in Madhavan v. Jaddou.
The DOS monthly visa bulletin contains two charts:
- The Dates for Filing chart reflects priority date (PD) cut-offs for qualifying applicants to submit their final green card application step – commonly known as the AOS application when filing with USCIS;
- whereas the Final Action Dates chart sets the cut-off dates for those pending AOS applicants ripe for employment-based green card issuance.
Each month, immediately after the DOS publishes its monthly bulletin, USCIS determines whether "eligibility for submission" of AOS applications is based on either the anticipated Dates for Filing chart or Final Action Dates chart.
USCIS chose the Dates for Filing chart for October 2022. As such, the following will happen in October:
- EB-1 remains current (visas available without restrictions based on priority dates) for applicants from all countries, including India and China.
- EB-2 remains current for applicants from all countries other than India and China.
- EB-2 advances for China by over two months.
- EB-2 regresses for India by over 2 ½ years.
- EB-3 remains current for applicants from countries other than India and China.
- EB-3 advances for China by nearly two months.
- EB-3 advances for India by over four months.
A Deeper Dive into the Visa Bulletin
USCIS typically chooses the Dates of Filing chart over the Final Action Dates chart at the start of each new fiscal year in October. This trend is the result of two main factors.
First, the new fiscal year marks a new allotment of 140,000
employment-based green cards, plus an expected spillover of up to
60,000 unused family-based green cards. This means that USCIS and
DOS will be under pressure to issue roughly 200,000
employment-based green cards over the next 12 months.
Second, USCIS needs to plan for and determine the overall demands for the remaining fiscal year to ensure that no green cards are wasted. Because there are a large portion of countries that do not "use-up" their given green card numbers, these numbers need to be reallocated to countries with the oldest pending applications and greatest demand, like India, China, the Philippines or Mexico.
In addition, USCIS has shown it is able to process AOS applications at a much faster rate than previous years, and it has explained why they have intentionally kept the volume of pending AOS applications at an excess of the number of green cards available.
The agency acknowledges that the volume of pending AOS applications "far exceeds" the green cards available in the EB-2 and EB-3 categories for both India and China. This is a result of the 7% annual per-country limit on green cards.
USCIS also concedes that it purposely allows AOS applications to remain pending even when there are not enough employment-based green cards available in a given fiscal year. The agency claims that it is "necessary to ensure that all of the EB visas [are] used."
That said, there is an exception to the 7% per-country green card limit that permits a country's unused employment-based green cards – by preference category – to spill over to applicants from other countries with the oldest priority dates.
For example, USCIS revealed that in FY 2021, Indian nationals used 50% of all EB-1 visas, 47% of the EB-2 visas and 27% of all EB-3 visas.
This exception, as a result of "not enough Rest of World demand," has been applied every fiscal year since the establishment of the current statutory scheme by the Immigration Act of 1990. In most years, it has applied to all three employment-based categories (EB-1, EB-2 and EB-3).
In FY 2023 – beginning Oct. 1, 2022 – USCIS will determine the amount of excess green card supply from "not enough Rest of World demand," and ultimately reallocate those green cards to backlog countries with the oldest priority dates. This overflow of green cards must be "used" by the end of the fiscal year.
The EB-2 India regression in the October 2022 Dates for Filing chart is likely due to the large number of EB-2 "upgrades" – or interfiling requests – that were filed in FY 2022 but remain pending. However, USCIS may still move EB-2 forward in the coming months depending upon the "not enough Rest of World demand."
For further analysis, check out the October 2022 Visa Bulletin Prediction from Yvonne Toy, Founding Partner at Corporate Immigration Partners.
Originally published 08 September 2022
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