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Permanent Residency Opportunity Rapidly Increasing For Employment-Based Immigrants

Finally, many individuals in the United States who have waited months or years for the ability to apply for Adjustment of Status to become a Lawful Permanent Resident (apply for a green card) based on approved petitions filed by their employers have finally been granted that ability.

This is due to the October 2020 Visa Bulletin showing considerable forward movement in available visa numbers and USCIS’s decision on how to apply the Visa Bulletin this month. To understand how we got to this point, a little background is required.

Visa Bulletin tracks availability of visa numbers for each preference category, by country. Check out our easy-to-read Bulletin here.

The U.S. Government is limited by law in how many green cards or immigrant visas (visa numbers) it may issue each year. For Family-Based immigrants (excluding Immediate Relatives), the annual limit is 226,000. For Employment-Based immigrants, the annual limit is 140,000. Within those general classes (Family-Based and Employment-Based), the available visa numbers are further split between a ranked list of “preference categories.” There are also country-specific limitations on available visa numbers within each of those preference categories for China, India, Mexico, Philippines, Vietnam, El Salvador, Guatemala, and Honduras.  If there are any unused visa numbers at the end of a year, those are carried over to the next year. If there are more qualified applicants for a given category than available visa numbers, that category is oversubscribed and backlogged if there are more qualified applicants than available visa numbers. In that case, the U.S. Government will establish a cut-off date and only individuals with an approved petition with a Priority Date earlier than that cut-off date will be allowed to apply for a green card or immigrant visa.

To keep track of who is able to apply for a green card and what categories are oversubscribed and backlogged, the U.S. Government issues a monthly Visa Bulletin, which can be accessed on the Department of State’s website. This Visa Bulletin shows the availability or unavailability of visa numbers for each preference category, by country. The Visa Bulletin contains two charts: a Final Action Dates chart and a Dates for Filing chart. Typically, although not in all cases, the cut-off dates listed on the Dates for Filing chart are later than those listed on the Final Action Dates chart.

Each month, USCIS determines which chart it will allow individuals in the United States to use for the purposes of filing a Form I-485 Application to Adjust Status and announces that decision on its website.

Oversubscribed categories rapidly advancing, particularly for Indian Nationals

Several of the Employment-Based preference categories are oversubscribed and have been for years. The cut-off dates for many of these oversubscribed categories have seen considerable advancement in the October 2020 Visa Bulletin for a few reasons:

  • The U.S. Government operates on a Fiscal Year which runs from October 1 to September 30. October 2020 is the first month of Fiscal Year 2021, so the full annual allotment of visa numbers is now available for use;
  • Fewer visa numbers were used in Fiscal Year 2020 than were available, and fewer were used than have historically been used on an annual basis because of the COVID-19 pandemic and corresponding bans and limitations on the issuance of visas and travel to the United States; and
  • Those unused visa numbers from Fiscal Year 2020 have been carried over to Fiscal year 2021.

Moreover, for the first time since March 2020, USCIS determined that in October 2020, applicants could use the Dates for Filing chart. This has resulted in considerable forward movement for many of the oversubscribed preference categories from September to October 2020, including:

  • EB-1 China and India advanced from March 1, 2018 to September 1, 2020
  • EB-2 China advanced from January 15, 2016 to October 1, 2016
  • EB-2 India advanced from July 8, 2009 to May 15, 2011
  • EB-3 Mexico, Philippines, El Salvador, Guatemala, Honduras, and Worldwide advanced from April 1, 2019 to Current (meaning that all eligible applicants may apply)
  • EB-3 China advanced from February 15, 2017 to June 1, 2018
  • EB-3 India advanced from October 1, 2009 to January 1, 2015
  • EB-4 Mexico advanced from June 15, 2018 to Current (meaning that all eligible applicants may apply)
  • EB-4 El Salvador, Guatemala, and Honduras advanced from April 1, 2017 to February 1, 2018

The biggest advancements were made in the oversubscribed categories for Indian nationals, with the biggest single advancement being seen in the EB-3 India category.

Consider applying in October if you have an approved Employment-based petition and eligible for adjustment status.

The U.S. Government expects that there will be continued rapid forward movement in the oversubscribed EB-1, EB-2, EB-3 preference categories in the coming months. However, there is certainly no guarantee. That expectation is based on assumptions and statistics which may not turn out to be accurate. If you are in the United States, have an approved Employment-Based petition, and are eligible to apply for adjustment of status in October, the safest option will be to apply in October rather than wait any longer. 

Individuals who are the beneficiary of an already-approved Form I-140 Petition under the EB-2 category, but do not yet have a current Priority Date may be eligible to file for Adjustment of Status if their Priority Date would be current under the EB-3 category and their employer files a “downgrade” Petition on their behalf for classification under the EB-3 category.

If you have any questions about whether you or your employee may qualify to file for Adjustment of Status in October due to this rapid forward movement, or if you need any other assistance, please contact David Swaim & Associates, located in Dallas. Our employment based services can be found here. We will continue to closely monitor the monthly Visa Bulletin for any further forward movement, or any retrogression, in the coming months.

Alex Farquhar
Associate Attorney- Dallas, TX
David Swaim & Associates