Nov 2022 Visa Bulletin - Analysis of Ominous Section E --- WHY?
This post attempts to explain why EB2 ROW (Rest of World) will potentially face cut-off dates in Visa Bulletins soon. (By the way, EB3 is also going to get cut-off dates...)
This post relates to the November 2022 Visa Bulletin. This post assumes the reader understands a lot of basic terminology and concepts. If you are new to the Visa Bulletin, or to my newsletter, or immigration law, you should consider reading some other things first, like these posts -
On October 9, I posted my preliminary analysis of the November 2022 Visa Bulletin and explained that Section E of the November 2022 Visa Bulletin was very ominous and unprecedented so early in the fiscal year. (November being only the 2nd month of FY2023).
Section E of the November 2022 Visa Bulletin warns us that the U.S. Department of State may need to introduce cut-off dates for Employment-Based 2nd Preference (EB2) Rest of World (ROW), which will implicate employers and individuals from those countries (basically all countries!) seeking to immigrate.
The introduction of cut-off dates for all nationalities will also negatively impact Indian and Chinese born Employment-Based (EB) immigrants who already have cut-off dates because in order for Indian and Chinese cut-off dates to move forward, they depend on unused immigrant visa numbers to spillover from ROW to their nationalities, particularly in the 4th quarter of the fiscal year. But the November 2022 Visa Bulletin is signaling there won’t be enough immigrant visas for ROW, and if there are not enough visas for demand in ROW, then there won’t be any extra visas to spillover to India and China.
This post attempts to analyze WHY EB2 ROW cut-off dates are coming.
I think the cut-off dates are coming because of what I call both ‘external’ and ‘internal’ reasons.
Regarding EXTERNAL reasons - EB immigrants seeking to obtain green cards who were not born in India or China are moving to the green card stage faster now than in prior years. This is mainly because people have moved to green card processing as an alternative to the extreme demand for H-1B visas subject to the H-1B cap. People are basically skipping the H-1B process.
Because the H-1B cap is so severely limited, employers who hire non-India/China immigrants are more open to sponsoring them directly from F-1 to a green card through the PERM process. This means that more PERM-based I-140s and I-485s are being filed for F-1s, whereas those employers would have traditionally transitioned people to H-1B first.
Also, more non-India/China immigrants in F-1 status who are seeking to work in the private sector after graduation are more open to filing EB-2 NIW self-petitions. The Biden Administration has actually promoted this option (implicitly as an alternative to H-1Bs). I wrote previously about the Biden Administration policy changes on EB-2 NIW here.
So what is happening is that there are simply more people filing for green cards and that increased external demand is putting pressure on the limited number of green cards available each year. The H-1B cap (annual limit of private sector H-1B visas) is so low that the demand has moved to green cards and now the green card annual limit is being threatened.
Another EXTERNAL cause is simply employers who waited in 2020 and early 2021 to start green card processing due to the pandemic and have been moving forward at the end of 2021 and into 2022. Those cases are coming through now and adding to the pressure against the annual limit.
Regarding INTERNAL - Frankly, the internal actions of USCIS are a more significant development as it relates to the immigrant visa usage. It really does not matter how many I-140s and I-485 applications are FILED; the visa numbers are only used when the I-485 applications are APPROVED.
What we have seen throughout calendar year 2022 (particularly the last 3-4 months) is USCIS working very hard (seriously!) to clear the EB I-485 backlog and also to use up all the EB immigrant visas for FY2022 (which ended September 30, 2022). They succeeded in using all the EB immigrant visas by restructuring how they process EB I-485s, sending them to the National Benefits Center and then out to local offices nationwide.
We are now well into October (the first month of FY2023), and we now have anecdotal information that USCIS continues to adjudicate EB I-485s relatively quickly. They continue to use the NBC/local field office process and it is working relatively well. Somehow they have persuaded local office adjudicators not to be pin-heads and so the RFEs we get are very straightforward or non-existent. The EB I-485 adjudicators in Nebraska and Texas were much more pin-headed and picky which is probably why they couldn’t process enough cases and why USCIS HQ decided to simply take the cases away from them. (This ties into a conspiracy theory I have that USCIS has labor relations problems but I’ll save that for another post).
While it is always good news for USCIS to process cases quickly, the impact on quick processing of EB I-485s is using up all the immigrant visa numbers.
Slightly related, USCIS has expanded premium processing to certain long-pending EB1(C) cases and EB-2 NIW filings, meaning that a lot of the very long pending I-140s are now getting approved and for ROW applicants, many of them have already filed I-485 applications so lots of the pandemic era I-140s and I-485s are getting approved now and that means there are I-140s from 2020, 2021, and now 2022, all being approved now and underlying I-485s also being approved and all of that is putting pressure on the EB immigrant visa quota (annual limit), signaling the possible implementation of cut-off dates.
Who Should be Worried about EB2 ROW Cut-Off Dates?
The following are categories of people who should be worried about the upcoming emergence of EB2 ROW cut-off dates:
EB immigration attorneys!
Employers sponsoring F-1 students born in countries other than India and China through the PERM process - in theory there is enough time to clear PERM for a candidate with 12 months of OPT plus 24 months of STEM OPT but depending on what kind of cut-off date is created, suddenly that strategy is threatened.
F-1 and J-1s seeking to file EB-2 NIW petitions and I-485 applications to get green cards before the end of their status.
L-1Bs from ROW who are not eligible for more than 5 years of L-1 time and who are often going through PERM. It is bad enough that PERM is moving very slow these days but the emergence of cut-off dates in EB2 ROW could blow up plans to transition L-1Bs into adjustment applicants with EADs.
SOLUTION: START EARLY and PUSH HARD to get things done.
PS -
The November 2022 Visa Bulletin did not mention it, but surely cut-off dates will also be coming for EB3 (Third Preference) - not just EB2.
I think the November 2022 Visa Bulletin mentioned EB2 because they are seeing a lot of EB2 NIW petitions approved and then the corresponding I-485 applications are being approved but for sure the trend that exists to oversubscribe EB2 ROW definitely exists for EB3, perhaps even worse. When the U.S. Consulates get into full swing on EB immigrant visa interviews, the usage of EB3 immigrant visas will accelerate greatly. There is a lot of anecdotal evidence that employers are willing to do EB3 green cards for skilled workers (not eligible for H-1B visas) but a lot of them were sold on the idea based on the priority dates being current. When priority dates are no longer current, they are not going to be happy waiting 5 years for their nursing assistants…
