The U.S. Department of State has released its April 2023 Visa Bulletin, imposing per-country cut-off dates that regulate immigrant visa availability and the flow of Adjustment of Status (AOS) application and consular Immigrant Visa application filings and approvals.

To be eligible to file an Employment-Based (EB) AOS application, a foreign national must have a priority date that is earlier than the date listed below for his or her preference category and country of chargeability. The “C” listing indicates that the category is current, and that applications may be filed by individuals with any priority date.  If a date is listed, only applicants with a priority date that is earlier than the listed cut-off date may file AOS applications.

The April 2023 Visa Bulletin retains the same cut-off date for EB-1 applicants chargeable to China and India EB-1 applicants from last month.  The EB-1 classification is current for all other applicants, with no cut-off date.  However, significant retrogression in the cut-off dates for persons in the EB-2 category as well as slight advancement for those under the EB-3 China category will take effect on April 1.

Final Action Dates Chart Will Control in April 2023

The Visa Bulletin includes both a Dates for Filing Visa Applications chart and a Final Action Dates chart. The Filing Action Dates chart indicates when a priority date is current I-485 AOS applications or Immigrant Visa applications may be approved and permanent residence granted.  The Dates for Filing, when followed by USCIS, indicates when intending immigrants may file their AOS applications with U.S. Citizenship and Immigration Services (USCIS).

Each month, USCIS chooses which chart it will follow.  For April 2023, the USCIS will follow the Final Action Dates chart for EB AOS application filings.  Thus, those seeking to file applications for AOS with the USCIS in April 2023 must use the Final Action Dates chart below to determine if their priority date is current.  Please note that this chart no longer includes a separate column for El Salvador, Guatemala, and Honduras.  These countries are now accommodated under the “All Chargeability Areas” column.

Employment- based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	01FEB22	01FEB22	C	C
2nd	01JUL22	08JUN19	01JAN11	01JUL22	01JUL22
3rd	C	01NOV18	15JUN12	C	C
Other Workers	01JAN20	01OCT14	15JUN12	01JAN20	01JAN20
4th	01SEP18	01SEP18	01SEP18	01SEP18	01SEP18

 

Employment-Based First Preference (EB-1)

The EB-1 category remains current (C) in April for all areas of chargeability other than China and India, with no cut-off dates imposed. This means that all EB-1 applicants from these areas can immediately file their I-485 AOS applications regardless of their country of chargeability.  However, cut-off dates continue to be imposed for EB-1 applicants chargeable to India and China.  These cut-off dates are February 1, 2022 in the April Visa Bulletin, meaning that EB-1 applicants chargeable to China or India who have a priority date before February 1, 2022, can file their I-485 AOS applications with the USCIS.

Employment-Based Second Preference (EB-2)

The EB-2 cut-off date for China has retrogressed to June 8, 2019. EB-2 applicants chargeable to China who have a priority date before June 8, 2019 can file their I-485 AOS with USCIS.

The EB-2 cut-off date for India has retrogressed to January 1, 2011. This means that Indian EB-2 applicants who have a priority date before January 1, 2011 can file their I-485 AOS applications with the USCIS.

The April 2023 Visa Bulletin imposes a cut-off date of July 1, 2022 for EB-2 applicants chargeable to the Rest of the World category, which is a few months earlier than the November 1, 2022 cut-off date that had been in effect in the March 2023 visa bulletin.

In its comments to the April 2023 Visa Bulletin, the U.S. State Department notes that a higher than expected number of visas have been used in the EB-2 category since December 2022, and that it has therefore become necessary to implement a retrogression in EB-2 Final Action dates for the China, India, and the Rest of the World categories. 

Employment-Based Third Preference (EB-3)

The EB-3 cut-off date for China is November 1, 2018. This means that China EB-3 applicants whose I-485 applications have not yet been filed and have a priority date before November 1, 2018 can file their I-485 AOS applications with the USCIS.

The EB-3 cut-off date for India is June 15, 2012, so India EB-3 applicants whose I-485 AOS applications have not been filed and have a priority date before June 15, 2012 can file their I-485 applications with USCIS.

All other EB-3 cut-off dates remain current (C). Individuals chargeable to the Rest of the World with priority dates after July 1, 2022 may be eligible to file an amended immigrant petition in the EB-3 category and benefit from the lack of a cut-off date.

T&S Takeaway

The Rest of the World EB-2 cut-off date of July 1, 2022 is a relatively late one and it is unlikely that many prospective applicants will be significantly disadvantaged by the imposition of this date.  Only those with priority dates of July 1, 2022 onwards will find themselves unable to file I-485 AOS applications in April. It is possible, however, that there may be a small number of EB-2 applicants with priority dates between July 1, 2022 and November 1, 2022 who are also eligible for the EB-3 category. These individuals should consult with their legal teams if interested in discussing the possibility of filing a I-140 petition in the EB-3 classification and the implications of doing so. 

The attorneys of Tafapolsky & Smith LLP will continue to monitor and analyze all developments affecting immigrant visa availability, including all statements made by U.S. State Department officers before the publication of the relevant Visa Bulletin, and will provide immediate updates on any significant developments.