The U.S. Department of State has released its February 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.  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. Only applicants with a priority date that is earlier than the listed cut-off date may file AOS applications.

The February 2023 Visa Bulletin imposes cut-off dates of June 1, 2022, for China and India EB-1 applicants and the EB-2 Rest of World category (which includes all nations other than China, India, Mexico, the Philippines, El Salvador, Guatemala, and Honduras) includes a cut-off date of December 1, 2022. These figures are unchanged from last month’s Visa Bulletin.

Dates for Filing Chart Will Control in February 2023

The Visa Bulletin includes both a Dates for Filing Visa Applications chart and an Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for AOS or Immigrant Visas, and the latter indicates when I-485 AOS applications or Immigrant Visa applications may be approved, and permanent residence granted.

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

Employment- based	All Chargeability Areas Except Those Listed	CHINA- mainland born	EL SALVADOR, GUATEMALA, HONDURAS	INDIA	MEXICO	PHILIPPINES
1st	C	01JUN22	C	01JUN22	C	C
2nd	01DEC22	08JUL19	01DEC22	01MAY12	01DEC22	01DEC22
3rd	C	01SEP18	C	01AUG12	C	C
Other Workers	01FEB20	01NOV15	01FEB02	01AUG12	01FEB20	01FEB20
4th	22JUL22	22JUL22	15APR18	22JUL22	15OCT20	22JUL22

Employment-Based First Preference (EB-1)

The EB-1 category remains current (C) in February for all areas of chargeability other than China and India, with no cut-off dates imposed. This means that all EB-1 applicants born in areas other than China and India can continue to file their I-485 AOS applications through the upcoming month.

Due to increased demand and limited visa availability, cut-off dates for EB-1 applicants chargeable to India and China were imposed in January 2023.  These cut-off dates remain the same in the February 2023 Visa Bulletin.  EB-1 applicants chargeable to China or India who have a priority date before June 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 remains at July 8, 2019, with no change from last month. EB-2 applicants chargeable to China who have a priority date before July 8, 2019 can continue to file their I-485 AOS with the USCIS into the month of February.

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

The February 2023 Visa Bulletin imposes a cut-off date of December 1, 2022 (again, unchanged from last month) for EB-2 applicants chargeable to the Rest of World category, as well as to El Salvador, Guatemala, Honduras, Mexico, and the Philippines.  These categories were previously current for some time.

Employment-Based Third Preference (EB-3)

The EB-3 cut-off date for China remains at September 1, 2018. This means that China EB-3 applicants who have a priority date before September 1, 2018 can file their I-485 AOS applications with the USCIS.

The EB-3 cut-off date for India remains at 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.

All other EB-3 cut-off dates remain current (C).

T&S Takeaway

The February 2023 Visa Bulletin leaves the cut-off dates for most EB-1, EB-2, and EB-3 categories unchanged from last month, with only a retrogression to February 1, 2020 occurring in the EB-3 “Other Workers” category.

The Rest of World EB-2 cut-off date, December 1, 2022, is unlikely to delay many prospective applicants, since only those with priority dates of December 2, 2022 and onwards will find themselves unable to file I-485 AOS applications in February.

Although the Rest of World EB-3 category remains current, 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 underlying basis of their green card process to the EB-3 category through the Transfer of Underlying Basis mechanism.  This situation may change if the cut-off date for the Rest of World category remains in place or retrogresses further in the coming months.

The attorneys of Tafapolsky & Smith LLP will 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.