August 2023 Visa Bulletin Explained
This post will analyze the August 2023 Visa Bulletin, which seems like a big dumpster fire. How did we get here?
With due respect to David Byrne:
You may find yourself living in a shotgun shack.
You may find yourself in another part of the world. (Common for immigrants!)
You may find yourself waiting eagerly for the monthly Visa Bulletin.
And you may ask yourself, “Well, how did I get here?”
This post will provide some analysis/commentary on the August 2023 Visa Bulletin and is meant for people who already have a general familiarity of how the Visa Bulletin works.
If you are new to the Visa Bulletin, first check out my Primer.
This post will try to answer the question: “Well, how did I get here?” when it comes to the August 2023 Visa Bulletin cut-off dates.
The cut-off dates of the August 2023 Visa Bulletin are disappointing and frustrating, but should not be surprising.
When thinking about the August 2023 Visa Bulletin, the first thing to remember is that August is the 11th month of the U.S. government’s fiscal year 2023 and as we approach the end of the fiscal year on September 30, 2023, the U.S. Department of State (which issues the Visa Bulletin) and USCIS (which approves the vast majority of EB green cards) will start to run out of immigrant visa numbers. This is actually a good thing. We want them to use up the annual allotment of immigrant visas.
We want USCIS to use up all the immigrant visa numbers (green cards) available during the fiscal year and NOT waste any, because employment-based immigrant visas (green cards) do NOT spillover into the next fiscal year.
So seeing the dates move backwards or become unavailable "(“U”) should be taken as a sign that USCIS (and the US consulates) are using up all the immigrant visas available.
The new allotment of immigrant visas will be available on October 1, 2023, which is the first day of Fiscal Year (FY) 2024. That means you should not expect anything interesting or positive to happen in September 2023 (the final month of FY2023).
Our great hope is for October - the start of FY2024.
With that introduction, here are my thoughts on the August 2023 Visa Bulletin:
August 2023 Visa Bulletin: India
The cut-off dates for India EB-2 and India EB-3 did not move at all from the July 2023 Visa Bulletin to the August 2023 Visa Bulletin. For both July 2023 and August 2023:
EB-2 India remains at January 1, 2011;
EB-3 India remains at January 1, 2009.
As a practical matter, those terrible cut-off dates basically mean no new I-485 applications can be filed and no pending I-485 applications can be approved for people in the EB-2 and EB-3 India categories in both July 2023 and August 2023.
The cut-off dates have been pushed so far back to, as a practical matter, generate no demand. It is not clear to me why the Visa Bulletin does not simply list a “U” for “unavailable” but for some reason they feel it is better to list a date that is very, very old.
Rather than simply say all the green cards are used for those two categories (India EB-2 and India EB-3), they list ancient cut-off dates to make us all miserable!
EB-2 India and EB-3 India are the categories most severely oversubscribed and the severe cut-off dates are signaling that there are still a large number of pending I-485 applications for EB-2 and EB-3 Indians, presumably cases that were filed in October 2020 and November 2020 when the ‘window’ opened wide. Because there are presumably so many I-485 cases pending, the U.S. government is reluctant to move up the cut-off dates and have more EB I-485s filed.
For the August 2023 Visa Bulletin in India EB-1, we saw the absurd move from a cut-off date of February 1, 2022, in the July 2023 Visa Bulletin, to January 1, 2012, for the August 2023 Visa Bulletin. The purpose of this severe move is similar to having the cut-off dates moved way back for EB-2 and EB-3 India; the cut-off date of EB1 in 2012 effectively stops all new I-485 filings from occurring and all pending I-485 applications from being approved. Weird + annoying for sure, but slightly predictable given that it is the 11th month of the fiscal year.
Importantly, for India EB-1, the end notes of the August 2023 Visa Bulletin say that it is anticipated that the cut-off date for India EB-1 will move forward to February 2022 in the October 2023 Visa Bulletin, although sadly the end notes do NOT say that India EB-1 will become “current.” One important possible takeaway from the August 2023 end notes is that cut-off dates may become the new normal for India EB-1.
August 2023 Visa Bulletin: Rest of World (ROW)
The August 2023 Visa Bulletin saw the establishment of a cut-off date for EB-1 ROW, which again should be understood to mean that the U.S. government is approaching the end of the FY2023 annual allotment of immigrant visas and therefore the cut-off dates need to be established to limit how many green cards are issued before September 30, 2023.
Interestingly, the EB-2 ROW cut-off date moved up slightly from the July 2023 Visa Bulletin to the August 2023 Visa Bulletin:
July 2023 Visa Bulletin (EB2 ROW) = February 15, 2022.
August 2023 Visa Bulletin (EB2 ROW) = FORWARD to April 1, 2022.
This relatively modest forward movement is not likely to generate new EB-2 ROW I-485 filings, but it could result in some EB-2 ROW I-485 approvals for pending cases.
I think when the cut-off dates move up slightly like this the U.S. Department of State is signaling that DOS and USCIS are starting to run out of pending EB-2 ROW cases that can be approved with a date before February 15, 2022, so they want to ‘open the spigot’ slightly for those cases (generally EB I-485 cases) filed after February 15, 2022, but before April 1, 2022.
Keep an eye on EB-3 ROW which I think is going to face some significant challenges at moving forward in the coming months. Sadly, EB-3 ROW might start to feel like EB-2 India or EB-3 India in terms of its slow movement forward.
The Legacy of FY2021
In a normal fiscal year, the U.S. government has 140,000 Employment-Based (EB) immigrant visas to issue.
However, if there are unused Family-Based (FB) immigrant visas, those can spill over into the next fiscal year for use by EB immigration. This spillover is directly permissible in the statute.
Due to the pandemic, and the fact that U.S. consulates were closed and unable to issue immigrant visas, there was significant spillover in FY2021 and FY2022 from unused FB immigrant visas for EB immigrant visas.
In FY2021, there were 262,288 EB immigrant visas available to be used (up from the normal 140,000).
In FY2022, there were approximately 281,000 EB immigrant visas available to be used — a record number, and also double the normal 140,000.
In FY2023, there are approximately 197,000 EB immigrant visas available to be used.
For FY2024, which will start on October 1, 2023, it is anticipated that the U.S. government will be back to 140,000. This is a daunting fact to ponder.
Again, the reason there are more EB immigrant visas (green cards) available in any given year is because of the inability to use all the family-based immigrant visas during the prior fiscal year.
But what happened in FY2021 is that USCIS was so incompetent that it failed to use 66,781 immigrant visas (green cards) out of its limit of 262,288. And the law does NOT allow spillover of unused EB immigrant visas. So these unused immigrant visas are lost forever (barring a change in the law).
I guess USCIS thought they were ‘close enough’ to the annual limit in FY2021, even though they failed to issue 66,791 immigrant visas that year! Sad!
After that pathetic performance by USCIS in FY2021, the agency revamped its process to handle EB I-485 applications and now distributes EB I-485 applications throughout local field offices throughout the United States. Rather than relying on two or three regional service centers as in the past, USCIS now distributes EB I-485 applications to many offices throughout the United States.
This is clearly a better system, that is, faster processing of EB I-485 applications is a good thing. FULL STOP. EB I-485 applications where the priority date is current are now often processed in 6 months or less, a timeline never previously seen for the prior 20+ years.
But the ‘problem’ with faster processing of EB I-485 applications is that it means the U.S. government reaches its annual allotment faster, meaning the Visa Bulletin cut-off dates look grim by the end of the fiscal year. That is what is happening now.
The USCIS failures particularly in FY2021 in handling the increase in EB immigrant visas available led to processing changes in FY2022 and to the credit of USCIS, they actually felt shame, and the agency did use all the 281k EB immigrant visas in FY2022.
But now we are in FY2023, and the agency is using the same ‘efficient’ EB I-485 system and presumably “working hard” to use up all 197k EB immigrant visas and they are very close to doing that, meaning the cut-off dates need to get severe to dry up demand at the end of the fiscal year. That is what is happening here.
Expansion of Premium Processing for EB1(C) and EB-2 NIW
In addition to faster processing of EB I-485 applications by adjudications at field offices nationwide, USCIS has expanded the availability of premium processing for two categories of I-140s - for EB-1(C) managerial I-140s and EB-2 NIW I-140s.
By expanding premium processing, it allows more I-140s to be approved and then by allowing more I-140s to be approved, it puts in position more I-485 applications to be approved.
So the expansion of premium processing on I-140s facilitates an increase in the number of EB I-485s approved, which means that the immigrant visa annual limit is reached more easily.
Expanding premium processing was a good thing! But it just means more people are ready to get their green cards.
Slow PERM Processing
Another thing that puts more pressure on the EB immigrant visa annual allotment is the fact that PERM processing is so slow. Huh?
How can slow PERM lead to more green cards being approved??
The reason the slow processing of PERM is relevant to the use of EB immigrant visas is that more and more people now opt for EB-2 NIW and even use the newly available premium processing of EB-2 NIW and then they can get faster I-140 approvals and faster EB I-485 approvals.
So the slow processing of PERM cases encourages more people, especially F-1 students, to try for EB-2 NIW or even EB-1, in hopes of getting something done faster, and when you combine the expanded availability of premium processing with the faster processing of EB I-485 applications at field offices nationwide, there is just a lot of pressure built up leading to the use of all the immigrant visas, which in the end is a good thing.
After all, it is much better to use all the EB immigrant visas every year and have cut-off dates fall back than not approve cases and not use all the EB immigrant visas, as happened in FY2021.
Challenges of the H-1B Cap
Separate from all of the above, in the last few years the H-1B cap has become increasingly impossible to win, due to the large number of people registering. This phenomena has also led to an increase in people trying straight for a green card, through PERM or EB-2 NIW or EB1.
Whereas in the past someone might go from F-1 to H-1B to PERM to green card; now they go from F-1 to EB-2 NIW to green card.
Similar to slow PERM processing, which is frustrating, foreign nationals and employers are looking for alternatives and SOLUTIONS and that search for alternatives is putting more pressure on the system, leading to faster use of the annual allotment of EB immigrant visas.
Looking Ahead to FY2024 and the Lack of FB Spillover
None of the trends that have led to faster use of the annual allotment of immigrant visas is scheduled to change:
USCIS will presumably continue to use field offices nationwide to process EB I-485 applications quickly.
USCIS will presumably continue to allow premium processing for all I-140 categories including EB-2 NIW and EB-1(C).
PERM will continue to be slow.
H-1Bs will continue to be hard to get.
And on top of all that, the challenge in FY2024 is that the spillover from the FB cases during the pandemic will no longer exist, meaning that the annual allotment for FY2024 is scheduled to go back to the ‘measly’ 140,000, well below the allotment available in FY2021, FY2022, and FY2023.
Barring a change in the law or the processing used by USCIS (or the interpretation of the Visa Bulletin cut-off dates by DOS), all eyes are on the October 2023 Visa Bulletin and how much cut-off dates may move up. My best guess is to watch for Chart B. My best guess is that the August 2023 Visa Bulletin Chart B is signaling where the Visa Bulletin will be in October 2023.
In a separate post I hope to do soon, I will share some background on Chart A versus Chart B and why an enlightened view of Chart B may be our only hope to avoid the ‘same as it ever was’ feeling throughout FY2024 and beyond.
Great write up. Looking forward to the next one on comparing the charts. Thank you.