October 2022 Visa Bulletin: Various Thoughts on India EB2/EB3 Retrogression and the Road Ahead

This post goes into the weeds on how to think about the Oct 2022 visa bulletin and makes some predictions about where FY2023 might go for India EB2 and India EB3.

[Predicting the Visa Bulletin cut-off dates feels like getting drunk & gambling in Las Vegas…]

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This post is coming later than I had hoped. I got Covid in September 2022. It was my first bout, and it hit me pretty hard. I still feel a bit more tired than I should. I am thankful to colleagues, friends, and family who helped me get through it.

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Each month the US Department of State (DOS) issues the Visa Bulletin. I have published a “Primer” on understanding Employment-Based (EB) immigrant cut-off dates in the Visa Bulletin. If you are not familiar with the Visa Bulletin, you should read the Primer. You can find the “Primer” post here.

For those looking for additional resources -

• The DOS website for the current and past Visa Bulletins can be found here. If you are really interested in staying on top of the Visa Bulletin, you can subscribe and get emails directly from DOS when each bulletin comes out.

• Each month, going back to October 2015, the US Immigration Service (USCIS) decides which of the “two charts” on the Visa Bulletin to honor for USCIS I-485 adjustment of status processing. The initial announcement about the USCIS policy can be found here. Prior to October 2015, there was only 1 chart for EB immigration each month.

• Each month since October 2015, the USCIS has issued its adjustment of status filing charts are here. Since the vast majority of EB immigrants are already in the US in a temporary visa status, the I-485 filing charts tend to be very important.

As noted in my “primer” post, USCIS generally uses Chart B early in the fiscal year and Chart A towards the end of the fiscal year.

• Chart B is generally a ‘better’ chart for immigrants, so USCIS will generally allow more I-485 filings early in the fiscal year and less I-485s later in the fiscal year.

The India EB-2 and India EB-3 cut-off dates are generally the most extreme and frustrating due to the US government policy of “per country limits.” So this post, going forward, will focus on how to think about the cut-off dates.

I also try to forecast what we might see for the rest of FY2023 (which started October 1, 2022).

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The October 2022 Visa Bulletin has recently been published and India EB2 and EB3 cut-off dates have fallen backwards significantly. This was unexpected and frustrating, especially since EB2 I-485 applicants in particular had expected their I-485 applications to be approved soon.

NOTE: If your EB I-485 application is pending, then USCIS cannot approve your application unless your priority date is current per Chart A (Final Action Chart). The pending I-485 remains pending and USCIS can and does approve EAD work permits and AP travel documents, including renewals.

• EB-2 India went from a Final Action Chart (Chart A) cut-off date of December 1, 2014, in the September 2022 visa bulletin to a cut-off date of April 12, 2012, in the October 2022 visa bulletin.

• This means that the EB-2 India cut-off date ‘retrogressed’ 2.5 years from the end of FY2022 to the start of FY2023.

The falling back of cut-off dates is commonly known among immigration professionals as “retrogression”.

To be clear, being in the I-485 application process with an I-485 application pending is MUCH better than being outside the I-485 process waiting to get in —- there are various benefits being an I-485 applicant versus not yet filing an I-485; but that does not mean it is not frustrating. It is!

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01 - Pandemic Spillover: FB to EB.

I have talked about this elsewhere, but to reiterate - the reason that India EB2 and EB3 cut-off dates moved forward so much in the October 2020 visa bulletin is because of “spillover.”

The U.S. government has a limited number of green cards to issue every year. Most of the Family-Based (FB) immigrant visas are issued at U.S. consulates. But during the 12 months preceding October 2020, the U.S. consulates were closed for long periods of time due to Covid.

By closing the U.S. consulates, the U.S. government did NOT use all the FB immigrant visas for the fiscal year that ended September 30, 2020. Thus, there were a large number of FB immigrant visas that “spillover” to EB immigration. The spillover occurred in October 2020 and again in October 2021, meaning that in the fiscal years preceding October 2020 and October 2021 the U.S. government failed to use all the FB immigrant visas.

The spillover effect resulted in a historic number of EB immigrant visas available starting October 2020 and justified the forward movement of cut-off dates. But a lot of confusion was created by the October 2020 Visa Bulletin moving up the EB3 cut-off date so much further than EB2. By ‘inverting’ EB2 versus EB3, there were a huge number of ‘downgrade’ I-140s and that contributed to the mailroom chaos of fall 2020.

• Because of spillover, there were 262,288 EB immigrant visas available for FY2021 (October 2020 to September 2021). Due to the chaos associated with the October 2020 visa bulletin and downgrades, etc., USCIS was unable to use 66,781 of those green cards.

• In the following year, FY2022, there were a record 281,507 EB immigrant visas (green cards) available (October 2021 to September 2022), and USCIS did use all the available immigrant visas by the end of the fiscal year.

Since the normal number of EB immigrant visas is 140,000, the availability of 262k and then 281k is what justified such a large move in EB-2 and EB-3 India cut-off dates, up to a “high water mark” of January 1, 2015.

• According to recent data provided by the U.S. government, there will be 50,000 to 60,000 immigrant visas that spillover from FB to EB into October 2022 (which is Fiscal Year 2023).

• The normal number of EB immigrant visas (green cards) available is 140,000, but because of FB-to-EB spillover, USCIS is therefore anticipating 200,000 available during FY2023.

The FB-to-EB spillover from FY2022 to FY2023 is probably the last spillover due to Covid. FY2023 will probably function normally for the U.S. consulates meaning that they will likely use all the FB immigrant visas and there will be no spillover for FY2024 (starting October 1, 2023).

Based in the October 2022 visa bulletin dates, it would seem the ‘big moves’ are over - so there was a special window that lasted two fiscal years - starting October 2020 and ending September 2022.

But as I note below, I am cautiously optimistic there might be forward movement on India EB2 and EB3 later this fall or perhaps the January 2023 Visa Bulletin.

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02 - Remembering July 2007.

For those unfamiliar, the July 2007 Visa Bulletin was even more chaotic than October 2020 (if you can believe it).

The July 2007 Visa Bulletin was issued in June 2007 during the AILA conference (annual conference of immigration attorneys) and it was such an unexpected and extreme development that several lawyers immediately flew home from the conference to work on cases.

The June 2007 Visa Bulletin had cut-off dates of April 1, 2004 for EB2 India and June 1, 2003, for EB3 India.

NOTE: Back in 2007, there was only 1 chart and a 3-4 year backlog was thought to be extreme. How quaint!

The July 2007 Visa Bulletin was issued and became ‘current’ in all categories.

At that time, USCIS and the U.S. Department of State were even more dysfunctional towards each other than now (if you can believe it). So, when the State Department issued the visa bulletin, it seemed like a surprise to USCIS.

USCIS responded to the July 2007 Visa Bulletin by trying to approve as many EB I-485 applications as possible. [Also worth noting they had a different policy on how medical exam validity worked back then].

USCIS spent the last 3 weeks of June 2007 trying to get all the immigrant visas used before the July 2007 visa bulletin. Basically right on July 1, USCIS claimed it had actually used up all the immigrant visas for the year (140,000) and therefore rather than being “current” for all nationalities and all categories in July, it should be “unavailable.”

This was announced right at the very end of June.

The response was pretty furious. Lawyers had prepared many thousands of cases ready to file on July 1. People flew home and ended vacations to get back to file their I-485s. As a result of the abrupt announcement that all EB categories were “unavailable” - a big class action lawsuit was filed and within days it was clear that USCIS had not really used up all the immigrant visa numbers as they claimed, rather the agency was just trying to stop a flood of I-485s in July 2007.

Similar to 2007, USCIS ‘used up’ its EB immigrant visa allotment pretty quickly in September 2022, which was a convenient way to respond to litigation challenging the system.

In 2007, USCIS admitted that they did not use all the immigrant visas and kept the July 2007 visa bulletin open through the middle of August and anyone ‘current’ could file in July 2007 and through the first half of August. That meant that people who were EB-2 India going back to 2004 were able to file I-485s and people who were EB-3 India going back to 2003 were able to file I-485s.

Many of those I-485 applications for Indians filed in July 2007 were pending for several years as the cut-off dates did retrogress and only moved up slowly for years.

There was some positive movement on EB2 India in spring 2012, to replenish the pipeline (garden hose) - if you followed my metaphor in the Primer.

But overall, very little happened from 2012 until Covid blew up FB immigration which spilled over into the October 2020 Visa Bulletin

At this point, in 2022, although there were a few different lawsuits against USCIS, I don’t know of any of them which will force USCIS to re-open and process additional EB I-485s this fiscal year (FY2023).

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03 - Predictions for FY2023.

As noted above, USCIS has indicated that there should be an additional 60K spillovers from FY2022 Family-Based to FY2023 Employment-Based, meaning the EB immigrant visa quota for FY2023 is anticipated to be 200k, up from the regular limit of 140k.

Given this, and given the supposed number of pending I-485s for Indian EB-2 and Indian EB-3, it would seem likely the EB2 India and EB3 India cut-off dates will jump forward. Keep in mind that in October 2021, the cut-off dates had fallen back and then moved up and FY2022 was a strong year for Indian EB I-485s.

At this point, based on what I know, I am hopeful that the EB-2 India date will jump forward to March 2015, and EB-3 India should also jump forward but perhaps not as far as EB-2.

Of course, as noted above, predicting the Visa Bulletin feels like drunken gambling so I am very open to the possibility my analysis is completely wrong.

Note that it might take the first quarter of the fiscal year (October 2022 to December 2022) for USCIS to sort out demand and the inventory of pending EB I-485 cases, but hopefully the January 2023 Visa Bulletin will see forward movement, hopefully slightly beyond the “high water mark” of January 2015.