United States: October 2022 Visa Bulletin – Significant Retrogression in EB-2 India, and Modest Advancement in EB-2 China and EB-3 China and India; USCIS Will Accept Employment-Based Adjustment Applications Based on Dates for Filing
September 8, 2022
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At a glance
- USCIS has announced that it will accept employment-based adjustment of status applications with priority dates that are earlier than the Dates for Filing listed in the Department of State’s October Visa Bulletin.
- The EB-2 India Date for Filing will retrogress by over two years, to May 1, 2012.
- The EB-2 China Date for Filing will advance more than two months, to July 8, 2019.
- The Dates for Filing for EB-3 Professionals and Skilled Workers for China and India will advance to July 15, 2018 and July 1, 2012, respectively.
- The Dates for Filing will remain current for EB-1, and for all countries in the EB-2 and EB-3 Professionals and Skilled Workers categories, other than China and India.
- The Date for Filing for the EB-5 Unreserved category for China will remain at January 1, 2016, and India will have a Date for Filing cut-off imposed of December 8, 2019. The Dates for Filing will remain current for all other countries in the EB-5 Unreserved categories, and for all countries in the EB-5 “Set-Aside” categories.
A closer look
In October, USCIS will shift to accepting adjustment of status applications based on the monthly Visa Bulletin’s Dates for Filing Chart, rather than the Final Action Dates Chart. This action was expected, because October 2022 marks the start of Fiscal Year 2023, and it is a common practice for USCIS to accept employment-based adjustment of status applications based on the typically more generous Dates for Filing Chart at the beginning of the fiscal year, when the annual supply of available immigrant visa numbers is at its peak. This is in contrast to the last several months of FY 2022, when USCIS chose to determine eligibility for adjustment of status filing based on the more restrictive Final Action Dates Chart.
According to the State Department’s October Visa Bulletin, the employment-based Dates for Filing – which in October will determine whether an adjustment of status application can be filed with USCIS in that month – will be as follows:
- EB-1: All countries, including India and China, will remain current.
- EB-2: India will retrogress by two years and eight months, to May 1, 2012, whereas China will advance by just over two months, to July 8, 2019. All other countries will remain current.
- EB-3 Professionals and Skilled Workers: India and China will both advance, to July 1, 2012, and July 15, 2018, respectively. All other countries will remain current.
- EB-3 Other Workers: India and China will both advance, with the India Date for Filing at July 1, 2012 and the China Date for Filing at November 1, 2015. For all other countries, a Date for Filing cut-off of September 8, 2022 will apply.
- EB-5: For the EB-5 Unreserved categories (C5, T5, I5, and R5), the Date for Filing for China will remain at January 1, 2016, India will have a Date for Filing cut-off imposed of December 8, 2019, and all other countries will remain current. For the EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure), the Date for Filing will remain current for all countries.
The employment-based Final Action cutoff dates – which will determine whether an adjustment of status application can be approved in October – will be as follows:
- EB-1: All countries, including India and China, will remain current.
- EB-2: India will retrogress by two years and eight months, to April 1, 2012, whereas China will advance by just over two months, to June 8, 2019. All other countries will remain current.
- EB-3 Professionals and Skilled Workers: India and China will each advance by over one month, to April 1, 2012, and June 15, 2018, respectively. All other countries will remain current.
- EB-3 Other Workers: India and China will both advance, with the India Final Action date at April 1, 2012 and the China Final Action date at September 1, 2012. All other countries will advance by over one year, to June 1, 2020.
- EB-5: The Final Action cutoff date for the EB-5 China Unreserved categories (C5, T5, I5, and R5) will retrogress by nine months, to March 22, 2015, and a Final Action cut-off date of November 8, 2019 will be imposed on the previously current EB-5 Unreserved category for India. EB-5 Final Action dates will remain current for all other countries, and for all EB-5 “Set-Aside” categories.
Retrogression in EB-2 India and EB-5 China and India
According to the Visa Bulletin, the rapid forward movement of the EB-2 India cut-off dates during FY 2022, which was undertaken in an effort to reach the historically high FY 2022 employment-based limit of 281,507 immigrant visa numbers, resulted in heavy applicant demand in the EB-2 India category. That high demand, coupled with projected significantly lower visa number availability in FY 2023, necessitated a significant retrogression in the EB-2 India category in order to avoid exceeding the annual numerical limits.
The State Department also reported heavy demand in the China EB-5 Unreserved category, particularly for immigrant visa issuances at U.S. Consulates abroad, and increased demand in the India EB-5 Unreserved category. This increase in demand, along with the lower number of employment-based visas expected to be available in FY 2023, required significant retrogression in the China EB-5 Unreserved category, and imposition of a Final Action cut-off date for the previously current India EB-5 Unreserved category.
Status of allocations for FY 2022
With only three weeks left in FY 2022, it is believed that USCIS has used nearly all available employment-based immigrant visa numbers for the fiscal year. Based on information from a recent USCIS court filing, it appears that numbers may have been exhausted in the EB-1 and EB-2 categories, and that the EB-3 category may reach its annual limit for FY 2022 soon. The State Department is expected to make an official announcement in the coming days.
In past years when an immigrant visa classification became unavailable toward the end of a fiscal year, USCIS would continue to accept adjustment of status filings that were current under that month’s Visa Bulletin, and cases would be held in abeyance until visa numbers again became available on October 1, at the start of the new fiscal year.
Fragomen is closely monitoring the situation and will issue further alerts as necessary.
Final Action Dates for October 2022
EB-1
China: Current
India: Current
All other countries: Current
EB-2
China: June 8, 2019
India: April 1, 2012
All other countries: Current
EB-3 Professionals and Skilled Workers
China: June 15, 2018
India: April 1, 2012
All other countries: Current
EB-3 Other Workers
China: September 1, 2012
India: April 1, 2012
All other countries: June 1, 2020
EB-4 (other than the SR religious worker category)
El Salvador, Guatemala, Honduras: March 15, 2018
Mexico: September 15, 2020
All other countries: Current
EB-4 SR Religious Workers
All countries: Unavailable. This category has been listed as unavailable for October because the program is currently set to expire on September 30, 2022. The State Department Visa Bulletin indicates that if there is legislative action extending the category, the category will become available, effective immediately, and will be subject to the same Final Action dates as the other EB-4 categories, as listed immediately above.
EB-5 Unreserved (Regional Center and Non-Regional Center)
China: March 22, 2015
India: November 8, 2019
All other countries: Current
EB-5 Set-Asides
Rural: Current for all countries
High Unemployment: Current for all countries
Infrastructure: Current for all countries
Dates for Filing for October 2022
EB-1
China: Current
India: Current
All other countries: Current
EB-2
China: July 8, 2019
India: May 1, 2012
All other countries: Current
EB-3 Professionals and Skilled Workers
China: July 15, 2018
India: July 1, 2012
All other countries: Current
EB-3 Other Workers
China: November 1, 2015
India: July 1, 2012
All other countries: September 8, 2022
EB-4 (other than the SR religious worker category)
El Salvador, Guatemala, Honduras: April 15, 2018
Mexico: October 15, 2020
All other countries: Current
EB-4 SR Religious Workers
El Salvador, Guatemala, Honduras: April 15, 2018
Mexico: October 15, 2020
All other countries: Current
EB-5 Unreserved (Regional Center and Non-Regional Center)
China: January 1, 2016
India: December 8, 2019
All other countries: Current
EB-5 Set-Asides
Rural: Current for all countries
High Unemployment: Current for all countries
Infrastructure: Current for all countries
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
