October 2021 Visa Bulletin: Most Employment-Based Cutoff Dates Unchanged; USCIS Will Accept Adjustment Applications Based on Dates for Filing; State Dept. Projects EB-3 Retrogression as Early as November

A closer look 

According to the State Department’s October Visa Bulletin, final action cutoff dates for issuance of an immigrant visa will be as follows: 

• EB-1: All countries, including China and India, will remain current.
• EB-2: China will remain at July 1, 2018, and India will remain at September 1, 2011. All other countries will remain current.
• EB-3 Professionals and Skilled Workers: Cutoff dates will remain the same for China at January 8, 2019, and for India at January 1, 2014. All other countries will remain current.
• EB-5: The Non-Regional Center program will be current for all countries except China. China will remain at November 22, 2015. The Regional Center program has expired and is listed as unavailable in the Visa Bulletin. If reauthorized, the Regional Center program will mirror the Non-Regional Center final action dates.

The Dates for Filing chart remains the same as last month for all categories, except EB-2 and EB-3 India and EB-3 China. EB-2 India advances by more than seven months to July 8, 2012, while EB-3 India retrogresses by more than two months to January 8, 2014 and EB-3 China retrogresses by more than five months to January 15, 2019.  However, both EB-3 Dates for Filing cutoffs are one week later than the categories’ corresponding Final Action Dates for September and October, therefore slightly expanding adjustment eligibility in October.

Employment-based adjustment of status filings with USCIS

In October, USCIS will accept adjustment applications based on the Dates for Filing chart, which is the typical USCIS practice at the start of a new fiscal year. Because October 2021 marks the start of Fiscal Year 2022, it was expected that USCIS would accept employment-based adjustment of status applications with a priority date that is earlier than the Dates for Filing listed in the October Visa Bulletin, as it has done at the beginning of past fiscal years. For the last several months as we neared the end of FY 2021, USCIS chose to use the Final Action Dates chart.

Impact of consular operations challenges

Visa application backlogs coupled with reduced consular operations due to COVID-19 public health measures will continue to limit the issuance of immigrant visas by U.S. consulates abroad. Immigrant visa (IV) applicants who are no longer subject to the Trump-era immigrant ban may see their cases move forward, but should continue to expect delays as most consulates are still at reduced capacity as they try to work through backlogs. Those previously refused under the IV ban should await further instruction from the U.S. consulate that handled their application.

Expired EB-5 Regional Center program

The EB-5 Regional Center program expired on June 30, 2021 and is therefore listed as “unavailable” in the October Visa Bulletin. Immigrant visa issuance and adjustment of status adjudications under this category ceased after the close of business on June 30. USCIS has provided guidance on its treatment of regional center-affiliated filings while legislation to reauthorize the Regional Center program are being negotiated in Congress. Advocacy efforts to support reauthorization are ongoing.

Employment-based immigrant visa availability through January 2022

In the October Bulletin, the State Department provides projections for immigrant visa availability through January 2022. The Department predicts the following potential monthly cut-off date movements:

• EB-1: Remain current for all countries, including India and China.
• EB-2: Remain current for all countries except India and China. Advancement up to several months for India and China.
• EB-3: Retrogressed Final Action Dates could be imposed for India and China as early as November 2021. Worldwide Final Action date cutoffs could be established as early as November 2021. These projections are a reversal from recent EB-3 predictions communicated by the State Department indicating retrogressions were unlikely to be imposed prior to the summer of 2022.
• EB-5: Current for most countries, but no forward movement expected for China.

Actual immigrant visa movement may differ from State Department projections due to the fluid nature of immigrant visa processing and adjustment of status adjudication.

Dates for Filing for October 2021

EB-1 

China: Current

India: Current

All other countries: Current                                                                            

EB-2  

China: September 1, 2018

India: July 8, 2012

All other countries: Current

EB-3 Professionals and Skilled Workers  

China: January 15, 2019

India: January 8, 2014

All other countries: Current

EB-3 Other Workers  

China: May 1, 2010

India: January 8, 2014

All other countries: Current

EB-4

El Salvador, Guatemala, Honduras: May 15, 2019

Mexico: Current

All other countries: Current

EB-5

China: December 15, 2015

Vietnam: Current

All other countries: Current

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.