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22 Nov 2022

United States

December 2022 Visa Bulletin Issued; Retrogression for Some EB-2 Categories

The U.S. Department of State (DOS) has released its December 2022 Visa Bulletin, imposing cut-off dates that regulate immigrant visa availability as well as the flow of filing and approving adjustment of status applications and consular immigrant visa applications. To be “Current,” a person seeking a green card must have a priority date that is before the cut-off date specified for their preference category and country of chargeability in the monthly Visa Bulletin.

As predicted last month, the DOS has imposed a cut-off date for the Employment-Based (EB) second preference (EB-2) Rest of the World category (which includes all nations other than China, India, Mexico, the Philippines, El Salvador, Guatemala, and Honduras) as a result of increased demand for immigrant visas in this category.

Dates for Filing Chart Will Control Filings in December 2022

The Visa Bulletin includes both a Dates for Filing chart and a Final Action Dates chart. The former indicates when intending immigrants may file their I-485 applications for adjustment of status or applications for immigrant visas, and the latter indicates such applications may be approved and permanent residence granted.

Each month, the U.S. Citizenship and Immigration Services (USCIS) chooses which of the two charts it will use for adjustment of status application filings. In December 2022, the USCIS will follow the Dates for Filing chart for employment-based (EB) adjustment applications. Individuals seeking to file applications for adjustment of status with the USCIS in December 2022 must thus use the Dates for Filing chart below.

To be eligible to file an EB adjustment application in December 2022, a foreign national must have a priority date that is earlier than the date listed for their preference category and country of chargeability (generally, their country of birth). The “C” listing indicates that the entire category is current, and applications may be filed with any priority date.

Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
EL SALVADOR,
GUATEMALA,
HONDURAS
INDIA MEXICO  PHILIPPINES 
1st C C C C C C
2nd 01DEC22 08JUL19 01DEC22 01MAY12 01DEC22 01DEC22
3rd C 01SEP18 C 01AUG12 C C
Other Workers 08SEP22 01NOV15 08SEP22 01AUG12 08SEP22 08SEP22
4th 22JUL22 22JUL22 15APR18 22JUL22 15OCT20 22JUL22

 Employment-Based First Preference (EB-1)

The EB-1 category remains current (C) with no cut-off dates imposed. This means that all EB-1 applicants can immediately file their I-485 adjustment of status applications regardless of their country of chargeability.

The December Visa Bulletin notes that increased demand and use in the EB-1 category, combined with decreased visa number availability for FY2023 compared to FY2022, is likely to result in the imposition of cut-off dates for EB-1 applicants chargeable to India and China in the coming months.

Employment-Based Second Preference (EB-2)

The EB-2 cut-off date for China remains July 8, 2019—no change from last month. EB-2 applicants chargeable to China who have a priority date before July 8, 2019, can file their I-485 adjustment of status applications with the USCIS.

The EB-2 cut-off date for India remains May 1, 2012—no change from last month. This means that Indian EB-2 applicants who have a priority date before May 1, 2012, can file their I-485 adjustment of status applications with the USCIS.

The December Visa Bulletin does note that “higher than expected levels of demand in the… Employment Second categories has materialized this year, and as a result, fewer additional numbers will be available to India in the Employment Second category.” Indeed, on the Final Action Dates chart, which determines when the USCIS can approve adjustment applications, the cut-off date for EB-2 India retrogressed by six months. This will result in some pending adjustment applications being placed on hold if the Indian applicant’s priority date is on or after October 8, 2011.

Finally, the December Visa Bulletin has imposed a cut-off date for EB-2 applicants chargeable to the Rest of the World category, as well as to El Salvador, Guatemala, Honduras, Mexico, and the Philippines. These categories had previously been Current for some time, but now have a cut-off date of December 1, 2022.

Employment-Based Third Preference (EB-3)

The EB-3 cut-off date for China has advanced by a month and a half to September 1, 2018. This means that China EB-3 applicants whose I-485 applications have not yet been filed and have a priority date before September 1, 2018, can file their I-485 adjustment of status applications with the USCIS.

The EB-3 cut-off date for India has advanced by one month to August 1, 2012. This means that India EB-3 applicants who have a priority date before August 1, 2012, can file their I-485 applications with the USCIS. For individuals with pending adjustment applications, the Final Action Dates chart reflects that EB-3 India advanced by two and a half months, to June 15, 2012. Because the Final Action Dates for EB-3 India are ahead of EB-2 India, some individuals with pending adjustment applications may benefit from transferring the underlying basis of their adjustment applications from EB-2 to EB-3.

All other EB-3 cut-off dates remain current (C) on the Dates for Filing chart.

Takeaways from the December Visa Bulletin

The most significant change in the December Visa Bulletin is imposition of a cut-off date for EB-2 applicants chargeable to the Rest of the World category, as well as to El Salvador, Guatemala, Honduras, Mexico, and the Philippines.  The December Visa Bulletin states that this was necessary “to “hold number use within the maximum allowed under the FY2023 annual limit.”

The Rest of the World EB-2 cut-off date is a very late one, and it is unlikely that many individuals will be significantly disadvantaged by the imposition of this date.  Only persons with priority dates of December 1, 2022, and onwards will find themselves unable to file I-485 adjustment of status applications in December. In addition, the final action cut-off date for all countries other than India and China will be November 1, 2022.

If the cut-off dates for the Rest of the World EB-2 retrogress further in the coming months, it may become advantageous for individuals to request to transfer the underlying basis of their adjustment applications to the EB-3 category, if eligible.

The attorneys of Tafapolsky & Smith, LLP will monitor and analyze all developments affecting immigrant visa availability—including all statements made by DOS officers before the publication of the relevant Visa Bulletin—and will provide updates on any significant developments.

© 2022 Tafapolsky & Smith LLP. All rights reserved.
The content above is provided for informational purposes only. It should not be construed as legal advice on any subject matter. Use of this information does not create an attorney-client relationship. 

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