Dec 2022 Visa Bulletin: Cut-Off Dates arrive for EB-2 ROW (Rest of World)
Is a "U" more likely than a "C" in the coming months?
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Recently I have been writing a lot about the Visa Bulletin. Today’s post is also about the Visa Bulletin and will attempt to explain some potentially significant developments in the very recently issued December 2022 Visa Bulletin.
While the main specific issue to be discussed ties to people born in non-India/China; the implications of cut-off dates for EB-2 ROW (“Rest of World”) do also implicate people waiting in the frustratingly long Indian-born and China-born queues.
As background:
Each month the U.S. Department of State issues the Visa Bulletin.
If you are not familiar with the general concepts of the Visa Bulletin, including the cut-off dates, I encourage you to review a prior post I did which provides some background -
In the November 2022 Visa Bulletin, issued in early October 2022, the U.S. Department of State did indicate ominously that cut-off dates may be coming soon for EB-2 ROW (Rest of World).
I wrote about the ominous warning - here and here.
To clarify, the special backlogs and cut-off dates that generally exist in the Visa Bulletin for EB (Employment-Based) immigration are generally for people born in India and China; so the abbreviation “ROW” stands for “Rest of World” and applies to people born in all countries other than India and China. Traditionally there are no cut-off dates or special backlogs for ROW EB-2 and EB-3.
The reason that cut-off dates are being introduced now, in the third month of the fiscal year 2023, for EB-2 ROW nationalities who traditionally do not face cut-off dates is - on some level - simple:
USCIS is processing EB I-485 adjustment of status applications relatively quickly, that is, they are issuing green cards for employment-based immigrants relatively quickly; and by processing the I-485 applications relatively quickly they are using up the immigrant visa numbers faster.
As a reminder, there is an annual quota (or cap) for immigrant visas similar to the quota (or cap) for H-1B visas. But whereas USCIS conducts a lottery to deal with the H-1B cap; the U.S. Department of State uses the Visa Bulletin and cut-off dates to manage supply and demand for the immigrant visa process (permanent resident/green card) process.
So, the officials who calculate the Visa Bulletin have created a cut-off date to manage the flow of cases being processed. They have created this cut-off date to limit the number of cases filed to ensure that the U.S. government will use all of the immigrant visa numbers but not more than the allocation for the current fiscal year - FY2023.
Thus, the irony is that by processing the EB I-485 applications faster (something we all generally want), the annual quota is being used up faster and thus less people are permitted to file I-485 applications.
Keep in mind:
The number of PERM labor certification applications filed does not matter.
The number of I-140 petitions filed does not matter.
The number of I-485 applications filed does not matter.
What matters is the number of I-485 applications approved, and what has been happening since October 1, 2022 (the start of FY2023) is that USCIS, to its credit, has been approving a lot of EB I-485 applications and by approving a lot of EB I-485 applications, they are quickly using up the annual allotment. And by quickly using up the annual allotment, they are creating a cut-off date to regulate (slow) the flow of new cases.
In the same way that right now the U.S. Federal Reserve is raising interest rates in hopes of slowing the economy (to fight inflation), the U.S. Department of State is creating cut-off dates to slow the flow of I-485 applications to ensure that both the U.S. Department of State and particularly USCIS do not exceed the annual allotment for green cards.
Whereas the Federal Reserve is raising rates to fight inflation due to excess demand in the economy (which results in higher prices); the U.S. Department of State is creating cut-off dates due to excess demand for EB immigrants in light of the statutory, annual limit for EB immigration.
Will Cut-Off Dates Continue for EB-2 ROW?
Given the relative rigor with which the U.S. Department of State has issued a warning about cut-off dates (in the November 2022 Visa Bulletin) and then a month later issued a Visa Bulletin with the actual cut-off dates (in the December 2022 Visa Bulletin), it seems that the EB-2 ROW cut-off dates are not ad hoc, but rather well-considered, most likely in close collaboration with USCIS officials, presumably including their review of -
How many pending EB I-485 applications are at USCIS; and
How many immigrant visa applications are awaiting adjudication at U.S. consulates; and
And how many EB-2 ROW green cards are available to be issued this fiscal year.
As a result of excellent litigation against USCIS, forcing the agency to shed light on its opaque processing of I-485 applications, I believe the agency is now keeping a lot closer track of how many I-485 applications are pending and how they are adjudicated.
Further, regarding the use of immigrant visa numbers by the U.S. consulates, note that for basically the past 3 fiscal years (FY2020, 2021, 2022), the U.S. consulates in particular have been very limited in their processing of EB immigrant visas due to COVID-related shutdowns.
The U.S. consulates are now finally re-open, and there is more and more indication that the U.S. Department of State (“DOS”) is aware of the significant backlogs and working hard to clear the backlogs.
While it is definitely a positive thing for DOS to clear backlogs for those who have been waiting a long time for immigrant visas, the downside of clearing backlogs is limiting future opportunities for others. That is what we are seeing here.
Some people are hopeful that the cut-off dates will disappear for EB-2 ROW nationalities in the Visa Bulletins issued in the coming months, although I have not heard any rigorous analysis to support that hope.
On the other hand, I “fear” that if USCIS continues to process EB I-485 applications in an efficient, robust way, that efficient processing of EB I-485 applications at USCIS combined with the relatively newly re-opened U.S. consulates will mean that there is a real possibility that all the immigrant visas for FY2023 will be used up by the spring - perhaps April 2023 or May 2023, meaning that rather than a “C” on the Visa Bulletin to indicate that EB-2 ROW is “CURRENT” - it may be more likely that we see a “U” - that is, the EB-2 ROW category may become “UNAVAILABLE.”
A category is “U” (UNAVAILABLE) when all the immigrant visas for the fiscal year have been used up. In the past (pre-pandemic), there was sometimes a “U” in the Visa Bulletins issued in the 4th quarter of the fiscal year (July, August, September); but given the pace of processing, it is possible that we will see a “U” earlier in the fiscal year.
How Does This Trend Impact Indian and Chinese EB Backlogs?
Indian and Chinese born EB immigrants are well aware of the backlogs that have persisted for their nationalities. The backlogs and cut-off dates have existed for Indian and Chinese born immigrants basically for 20+ years, in varying degrees.
The main way that the cut-off dates for EB-2 ROW implicate India EB-2 and China EB-2 is that if the U.S. consulates and USCIS continue to adjudicate ROW cases relatively quickly, there will be no ‘spillover’ of available, unused immigrant visa numbers to be applied to Indian-born and Chinese-born applicants.
In the past, if USCIS had been slow to process EB I-485 applications in the first 3 quarters of the fiscal year, then in the 4th quarter of the fiscal year (starting in July), USCIS could use some excess supply to the backlogged countries (India and China); but this year if the pace of processing continues quickly, there will not be any unused immigrant visas available to spillover to India and China.
Further, the same principles that have created a lot of ‘demand’ for EB-2 ROW, namely, fast processing of EB I-485s at USCIS and the re-opening and faster processing of EB immigrant visas at U.S. consulates - these trends now appear to be on the verge of implicating EB-1 (FIRST PREFERENCE) India and China filings, and in the same way that this spring we may find a “U” (UNAVAILABLE) in the Visa Bulletin for EB-2 ROW, it is possible that at some point later this fiscal year there will be a cut-off date introduced for EB-1 and perhaps also a “U” placed in the EB-1 categories for India and China.
Overall, there is simply huge demand and limited supply and while efforts to make the agencies go faster seem to have resulted in some success, the irony of the faster processing by USCIS and the U.S. Consulates means the EB annual allotment of immigrant visas could be used up much faster and mean that for a big chunk of the year it is not possible to file I-485 applications for various nationalities and categories.
Any Chance Congress will do anything?
I strongly oppose the “per country limits” which have resulted in Indian-born immigrants facing absurd wait times.
I oppose these limits because I think it is fundamentally unfair for a company to hire someone born in Nepal and someone with the same qualifications born in India, and the new hire from Nepal can get a green card in 24 months whereas it would take the new hire from India perhaps up to 10 years or more. I just don’t think this is how our system should work. I wish everyone seeking a green card in the EB-2 category were in the same queue, regardless of nationality.
Earlier this fall I had hoped if the cut-off dates emerged for ROW, it might raise the profile of the issue in Congress such that Congress would increase the annual limit of green cards available, and/or exempt certain kinds of people from the annual EB immigrant visa allotment/limit. I had hoped that if the backlog and cut-off dates applied to all nationalities that it would be easier for a bipartisan solution to emerge rather than it always being framed as “an India problem.”
But my concern now is that the cut-off dates and potential unavailability of immigrant visas is likely to occur in spring 2023 which might coincide with the anticipated recession and uptick in unemployment.
If 2023 has higher unemployment and a recession, I do not believe there will be political appetite to “fix immigration.”
I believe it is hard enough in the United States to “fix immigration” when the economy is strong; but if the economy is weak, I think it may be impossible.
Further complicating things is that the U.S. House is now controlled by the Republicans and they have clearly made it their agenda to be restrictive about immigration policy. There is also a budding civil war in the Republican party between those who are loyal and support former President Trump and those who would rather see a different GOP nominee for President in 2024. I believe that the “not Trump” forces in the Republican party will be reluctant to do anything in Congress in 2023 perceived as pro-immigration for fear that it will give former President Trump ‘an opening’ to gain popularity. I think, unfortunately, the Republican Party will continue to be very restrictive in its views of immigration in 2023 and 2024 and focus perhaps exclusively on policies to ‘securing the border’.
This means, sadly, that I think this Visa Bulletin problem may not be going away any time soon. But I would be happy to be wrong!
