Earlier this year, the U.S. Department of State (DOS) determined that the FY2022 employment-based immigrant visa annual limit would be 281,507 – slightly more than double the typical annual total – due to unused family-based visa numbers from FY2021 being allocated to FY2022’s available employment-based visas. During the course of FY2022, DOS and U.S. Citizenship & Immigration Services (USCIS) made massive efforts to use all available immigrant visas to avoid the waste that has occurred in prior years.
In a court declaration filed on September 6, 2022, USCIS claimed it had used all available immigrant visas for applicants from any country of chargeability in EB1 and EB2, and in an FAQ, USCIS announced that it expected to use all of the more than 280,000 employment-based visa numbers available in FY2022 by September 30. Although eligible applicants were able to continue submitting new applications during September, USCIS is not able to approve applications once visa numbers are no longer available, so these cases will be retrogressed and remain pending until visa numbers become available again for that particular category. Despite retrogression, if an application is timely filed the individuals will be eligible for portability, work authorization, and other benefits that come with the filing of adjustment of status applications.
The employment-based annual limit for FY2023 will be higher than was typical before the pandemic, though lower than in FY2021 and FY2022. USCIS has again stated its intention to use every available visa possible during FY2023. DOS estimates that the employment-based annual limit will be 200,000, taking into account unused family-based visas from FY2022.
When USCIS determines that there are more visas available for the fiscal year than there are known applicants for these visas, USCIS will permit applicants to use the Dates for Filing Visa Applications charts in the bulletin. These dates, in most instances, are much more favorable to the intending immigrant. For the month of October 2022, USCIS has instructed that all employment-based preference categories must use the Dates for Filing chart of the Visa Bulletin. However, the October Visa Bulletin shows significant retrogression for the EB2 category for those born in India. All EB1 categories remain current in October. All countries except for China and India likewise remain current in the EB2 and EB3 preference categories. For India, the EB2 cut-off date for October will be May 1, 2012, and the EB3 cut-off date will be July 1, 2012. For China, the EB2 cut-off date will be July 8, 2019, and the EB3 Final Action Date will be July 15, 2018.