Nov 2022 Visa Bulletin - Analysis of the Ominous Section E
This post takes a first pass at reviewing the November 2022 Visa Bulletin including Section E which signals cut-off dates for other nationalities (not just the usual suspects - India and China).
In US immigration law, the most important concept to understand is that the system is based on supply and demand. There is huge demand and limited supply (of green cards).
And essentially everything is 'messed up' based on this.
Each month the US Dept. of State (DOS) publishes the Visa Bulletin to tell the public where they stand with respect to the ongoing backlogs.
On October 6, 2022, DOS has published the Nov 2022 Visa Bulletin. For EB immigrants (particularly those born in India), there was no movement in the key categories of India EB2 and India EB3. (Boo!)
But there was an ominous warning placed in Section E of the Visa Bulletin. This post will discuss the ominous Section E.
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It is important to know that traditionally the vast majority of people seeking green cards through Employment-Based (EB) immigration are already in the US in some kind of temporary work visa status (like H-1B).
Each month the USCIS (a separate agency from DOS) publishes its "I-485 adjustment of status filing charts." The USCIS I-485 filing chart determines who is permitted to file I-485 applications (final stage green card applications) for people in the US.
You can review the USCIS I-485 filing charts here.
Below I have prepared my own chart showing the EB2 and EB3 Indian cut-off dates to show their movement (or lack of movement).
Traditionally Indian EB2 and EB3 cut-off dates have been the most dramatic and interesting (frustrating?) to track.
The dates in red mark what I call the “high water marks.” Basically this is the furthest that the category has moved. The high water mark for EB3 is actually higher than the high water mark for EB2, and so lots of people filed what are known as “downgrade” petitions - moving themselves from EB2 to EB3 to take advantage of that inversion. But it only lasted 2 months (Oct 2020 and Nov 2020) and USCIS really mangled the processing of cases filed during that period and there are sadly many thousands of Indians waiting for their I-485s to be approved as a result of the Fall 2020 downgrade fiasco.
A few other things to notice -
USCIS generally allows the use of “Chart B” early in the fiscal year; and then later switches to “Chart A.”
The cut-off dates can move dramatically and erratically, as if you are following the NASDAQ 100 or maybe trying to invest in bitcoin.
There was a disappointing, significant “retrogression” in the dates to start this fiscal year on October 1, 2022.
In a recent post in my newsletter, I had predicted that perhaps EB2 India cut-off dates would hopefully 'move up' to March 2015 - a new high water mark - during this fiscal year (FY2023). I just made this prediction very recently and I continue to have that hope. I base my prediction on the fact that there are reportedly over 50,000 additional EB immigrant visas available this fiscal year (FY2023) based on spillover from family-based immigrant visas unused in last fiscal year (FY2022).
But I am slightly less confident in my prediction of forward movement with the release of the November 2022 Visa Bulletin and ominous Section E.
Section E of the Nov 2022 Visa Bulletin makes me nervous.
Here is Section E of the November 2022 Visa Bulletin:
What Section E is saying is that because of “increased demand” in EB-2 for all the other countries of the world (other than India and China), the U.S. Department of State may have to introduce cut-off dates to limit the number of filings. Traditionally EB-2 outside India and China rarely have cut-off dates. These normally occur at the end of the fiscal year in the 4th quarter but I don’t know if they have ever been signaled so early in the fiscal year.
The introduction of cut-off dates for what is known as ROW (Rest of World) is bad news for people of those nationalities, and their employers. Often people of those nationalities have immigration strategies based on their nationality not being subject to cut-off dates.
And very often people of those nationalities don’t even understand the Visa Bulletin in the same way it consumes many long-suffering Indians who have educated themselves on the dysfunctions of the U.S. immigration system.
But let me be clear - the introduction of cut-off dates for ROW EB2 is not just bad for people from those countries. It is also bad news for Indian-born foreign nationals who depend on the unused visas for other nationalities to flow to India. Indians need the unused ROW visas to flow to India to meet the intense demand for EB green cards for people born in India.
I plan to do a second post about the November 2022 Visa Bulletin where I speculate on where this increased demand is coming from. I believe it is coming both externally, that is, because more people are filing particularly EB-2 NIW petitions but I believe it is also the result of ‘internal’ pressure, that is, USCIS clearing out backlogs and approving a lot of I-485 applications.
For immigration professionals handling EB-2 NIW cases for non-India/China born clients, you will want to ‘get going’ to make sure the I-140 and I-485s are filed before cut-off dates are introduced.
For people waiting for PERM, particularly F-1 students hoping to get a PERM-based I-140/I-485 filed before the end of their OPT/STEM OPT, the possibility of cut-off dates will create an added level of anxiety. The U.S. Department of Labor continues to process 9141 prevailing wage requests and 9089 PERM applications at record slow rates with no indication that they are going to clear out backlogs.
BUT LET ME LEAVE YOU WITH A SLIGHTLY MORE OPTIMISTIC CONCLUSION - While the above is not great news, particularly in the short term and medium term, I do actually think that cut-off dates for all nationalities will end up being a positive thing because it will force Congress to make improvements to the EB immigration system.
Possible ideas include exempting STEM Ph.D.s from the EB immigrant visa cap, exempting physicians and nurses, and/or exempting derivative dependent family members, who currently count against the regularly 140,000 annual cap.
I have long believed the way to get action on EB immigration reform is to document the problem is not just an “Indian” problem but rather a problem with the system overall.
For years Indian-born activists have tried to get legislation to eliminate the “PER COUNTRY” limits. I support that kind of change but after 20 years of waiting, I am very open to alternatives.
I am hopeful that if the ominous Section E comes to pass, and cut-off dates are introduced for all nationalities in EB-2 and EB-3, while we still face a national labor shortage, there will be intense pressure on Congress to make adjustments (improvements) to the existing system.