For the past two years, there have been record-breaking numbers of employment-based immigrant visas (green cards) available to applicants, primarily due to COVID-19 pandemic-related consulate closures overseas causing numerous family-based visas to "fall over" to the employment-based category. In Fiscal Year (FY) 2023, however, the US Department of State (DOS) estimates the employment-based visa limit to be approximately 197,000, which is higher than the pre-pandemic average yearly total (about 140,000), but far less than the historic number of visas available in FY 2021 (262,288) and FY 2022 (281,507).1 As the world continues to recover from the difficulties associated with the pandemic and overseas visa operations return to normal, it is anticipated that employment-based visa availability in FY 2024 will return to its historical annual limits.2 This reduction in employment-based visa availability is slowing priority date progression in the DOS's monthly visa bulletin and resulting in longer wait times for applicants than those experienced in recent years.
Under the Immigration and Nationality Act (INA), the annual employment-based visa limit is 140,000 in addition to any visas that went unused in the family-based category the previous fiscal year, with specific percentages distributed amongst the employment-based preference categories. In general, no single country may be allocated more than 7% of the overall immigrant visas available for a given year.3 The DOS administers these annual immigrant visa allocation limits by releasing the Visa Bulletin each month, which establishes the current availability of visas based on an applicant's employment preference category and country of chargeability (generally, a foreign national's country of birth).4 When demand exceeds the availability of immigrant visas, DOS may retrogress specific employment visa categories and countries of chargeability by establishing "cut-off dates" to keep visa usage for the fiscal year within limits required under the INA.
A foreign national's priority date is obtained once certain milestones in the employment-based immigration process are met and an applicant may only proceed to apply for a green card once their priority date is current for filing under the Visa Bulletin for that month. Similarly, those with pending applications are only eligible to have their application fully adjudicated and receive their green card if their priority date is current in the monthly Visa Bulletin's Final Action Dates chart and visas remain available for issuance.5 As demand for immigrant visas from certain countries, primarily China and India, often outpaces visa availability, the "cut-off dates" in the Visa Bulletin for some employment-based categories have become quite backlogged, resulting in lengthy waits for many current and prospective green card applicants.6
While FY 2021 and FY 2022 saw the rapid forward movement of priority dates for many employment-based categories, priority date movement in FY 2023 has been somewhat unpredictable, and we have seen multiple retrogressions of many employment-based categories in the first half of the year. Moreover, the monthly Visa Bulletins have warned of the potential for further retrogression in the coming months. Forward movement of priority dates in the employment-based categories is likely to continue to be slowed for the remainder of the fiscal year. If demand for visas continues to remain much higher than expected, this trend may continue into FY 2024 as well.7
The reduced availability of visas for FY 2023, and consequently, the slower progression of priority dates in the monthly Visa Bulletin, is affecting both current and prospective employment-based green card applicants and their employers. For many prospective applicants, this may delay their ability to apply for the last stage of the green card process and hinder their ability to access associated benefits if they are applying in the US. This may, in turn, result in increased costs for employers, who may need to file more renewals to maintain the foreign national employee's US work authorization or may have to transfer workers overseas.8 For applicants with pending green card applications but whose priority date has retrogressed, their applications will remain in the processing queues and will need to wait until their priority date becomes current to have their application fully adjudicated in order to receive their green cards. These increased wait times can be frustrating to applicants, many of whom have waited years to reach this stage of the green card process. Still, adjustment of status (AOS) applicants are eligible for certain benefits while their applications remain pending, including authorized stay to remain in the US and eligibility to file for and extend Employment Authorization (EAD) and Advanced Parole (AP) applications for US work and travel authorization. Dependent child green card applicants who might otherwise age out of eligibility to adjust status with their parents may also be eligible for protections under the Child Status Protection Act (CSPA) protections which USCIS expanded earlier this year.9 Finally, AOS applicants may be eligible for job portability provisions to "port" the sponsored role to a new position or employer, provided the role is the same or similar to the sponsored position and certain requirements are met, enabling some applicants with long-pending applications to progress their career.10
Overall visa availability and green card processing trends are beginning to look closer to what was seen in 2019, nevertheless this sudden slow-down with continued high demand feels like a disruption to what had become a fast-paced status quo in the wake of the COVID-19 pandemic. The protections in place for those who have applied for their green card may help alleviate some concerns for applicants and their employers, however, extended processing timelines may still lead to frustration. If these trends continue and frustration continues to mount, there may be increased pressure for legislative action in this area.
1. US Citizenship and Immigration Services. "Fiscal Year 2023 Employment-Based Adjustment of Status FAQs." https://www.uscis.gov/green-card/green-card-processes-and-procedures/fiscal-year-2023-employment-based-adjustment-of-status-faqs.
2. Stuart Anderson. "Everything Immigrants Need To Know About The Visa Bulletin." Forbes. June 1, 2023: https://www.forbes.com/sites/stuartanderson/2023/06/01/everything-immigrants-need-to-know-about-the-visa-bulletin/?sh=1a800ab833a4.
3. US Congress. (1964) United States Code: Immigration and Nationality, 8 USC §§ -1401 Suppl. 2 1964.
4. The Visa Bulletin may be viewed monthly at the following link: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html. USCIS' determination on whether the Dates for Filing or the Final Action Dates chart may be used to file a green card application that month is posted at the following link: https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin.
5. US Citizenship and Immigration Services. "Visa Availability and Priority Dates." https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates.
6. Hirokazu Kishinami. "Employment-Based Green Card Priority Date Retrogression." Mondaq. February 22, 2023: https://www.mondaq.com/unitedstates/general-immigration/1285292/employment-based-green-card-priority-date-retrogression.
7. Stuart Anderson. "Everything Immigrants Need To Know About The Visa Bulletin." Forbes. June 1, 2023: https://www.forbes.com/sites/stuartanderson/2023/06/01/everything-immigrants-need-to-know-about-the-visa-bulletin/?sh=1a800ab833a4.
8. Laura Bloniarz. "Green Card Processing Slow Down Ahead: What Companies Can Expect And How To Prepare." Mondaq. January 16, 2023: https://www.mondaq.com/unitedstates/work-visas/1271226/green-card-processing-slow-down-ahead-what-companies-can-expect-and-how-to-prepare.
9. US Citizenship and Immigration Services. "USCIS Updates Child Status Protection Act (CSPA) Age Calculation for Certain Adjustment of Status Applicants." https://www.uscis.gov/newsroom/alerts/uscis-updates-child-status-protection-act-cspa-age-calculation-for-certain-adjustment-of-status.
10. US Citizenship and Immigration Services. "Fiscal Year 2023 Employment-Based Adjustment of Status FAQs." https://www.uscis.gov/green-card/green-card-processes-and-procedures/fiscal-year-2023-employment-based-adjustment-of-status-faqs
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.