The U.S. Department of State has released its visa bulletin imposing per-country cut-off dates that regulate immigrant visa availability, and the flow of Adjustment of Status (AOS) applications and consular Immigrant Visa application filings and approvals.  In order to be “current,” the priority date held by a person seeking a green card must be before the cut-off date specified in the monthly Visa Bulletin.

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 with any priority date.

The May 2023 Visa Bulletin retains the cut-off dates of February 1, 2022, for China and India EB-1 applicants from last month.  The EB-1 Rest of the World category (which includes all nations other than China, India, Mexico, and the Philippines) is current, with no cut-off date.

Further retrogression in the cut-off dates for persons in the EB-2 category has occurred in the May Visa Bulletin, as noted below, and the Rest of the World EB-3 category is now backlogged and subject to a cut-off date of June 1, 2022.

Final Action Dates Chart Will Control in May 2023

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

Each month, the US Citizenship and Immigration Services (USCIS) chooses whether it will follow the Final Action Dates or the Dates for Filing chart.  For May 2023, the USCIS will follow the Final Action Dates chart for Employment-Based AOS application filings.  Thus, individuals seeking to file applications for AOS with the USCIS in May 2023 must use the Final Action Dates chart below.

Employment- based	All Chargeability Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	01FEB22	01FEB22	C	C
2nd	15FEB22	08JUN19	01JAN11	15FEB22	15FEB22
3rd	01JUN22	01APR19	15JUN12	01JUN22	01JUN22
Other Workers	01JAN20	15APR15	15JUN12	01JAN20	01JAN20
4th	01SEP18	01SEP18	01SEP18	01SEP18	01SEP18

Employment-Based First Preference (EB-1)

The EB-1 category remains current (C) in May for all areas of chargeability other than China and India, with no cut-off dates imposed. This means that all EB-1 applicants chargeable to countries other than China or India can immediately file their I-485 AOS applications.

The EB-1 cut-off date for China and India is February 1, 2022, in the May Visa Bulletin.  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 is June 8, 2019, with no change from last month. EB-2 applicants chargeable to China who have a priority date before June 8, 2019, can file their I-485 AOS with the USCIS.

The EB-2 cut-off date for India remains at 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 May 2023 Visa Bulletin imposes a retrogressed cut-off date of February 15, 2022 for EB-2 applicants chargeable to the Rest of the World category, as well as to Mexico and the Philippines.  The cut-off date for these categories was previously July 1, 2022.

In its comments to the May 2023 Visa Bulletin, the U.S. State Department notes that higher than expected number use has continued to occur in the EB-2 category and that it has therefore become necessary to implement a further retrogression in EB-2 Final Action dates for India and the Rest of the World.

Employment-Based Third Preference (EB-3)

The EB-3 cut-off date for China has moved forward to April 1, 2019. This means that China EB-3 applicants whose I-485 applications have not yet been filed and have a priority date before April 1, 2019, can file their I-485 AOS applications with the USCIS.

The EB-3 cut-off date for India remains at June 15, 2012. This means that India EB-3 applicants whose I-485 AOS applications have not yet been filed and have a priority date before June 15, 2012, can file their I-485 applications with the USCIS.

The Rest of the World, Mexico, and the Philippines cut-off date has retrogressed to June 1, 2022.  These categories were previously current.  This reduces the possibility that persons chargeable to the Rest of the World who have approved immigrant petitions in the EB-2 category may seek to file amended immigrant petitions in the EB-3 category, since this category will no longer be current.

In its comments to the May 2023 Visa Bulletin, the U.S. State Department notes that higher than expected number use has occurred in the EB-3 category and that it has therefore become necessary to implement an EB-3 Final Action cut-off date for the Rest of the World.  The State Department notes that it will continue to monitor the situation; a further retrogression in the EB-3 category for the Rest of the World is possible in the coming months.

T&S Takeaway

The May Visa Bulletin includes a number of significant developments, including the fact that the only category that will be current in May is the EB-1 Rest of the World, Mexico, and the Philippines category.  As noted above, it is unlikely that there will be a large number of EB-2 applicants who are also eligible for the EB-3 category seeking to change the basis of their green card process to the EB-3 classification, given the fact that the EB-3 category will no longer be current in May.

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