The Relationship between I-140s, I-485s, and Visa Bulletin Cut-Off Dates.
Faster processing at USCIS is always better, or is it?!
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In case you are not familiar, I practice U.S. immigration law with a focus on Employment-Based (EB) immigration. I am based in Minnesota but I represent clients throughout the United States and actually worldwide. You can find my online presence/bio here.
My clients include large and small employers, and individuals (generally highly skilled/educated self-petitioners and/or entrepreneurs). I have a lot of experience working with U.S. immigration law issues for physicians, medical researchers, life sciences professionals, as well as people in IT/software, financial services, manufacturing, and agribusiness - although to be honest I have represented people in all kinds of domains. Some of my more recent “exotic” cases -
We handled a successful O-1 extraordinary ability visa for a soccer coach from Brazil (approved this month);
In the fall we got an O-1 extraordinary ability visa approved for a social media content creator; and
Also this fall we handled an E-2 visa for a German real estate investor whose business has actually been in the US since it was started by his grandfather in the 1970s.
I started this newsletter in July 2022 to share information and insights into the opaque world of U.S. immigration law with a focus on EB immigration.
This post tries to explain the slightly convoluted relationship between I-140s, I-485s, and the Visa Bulletin cut-off dates.
Cut-off Dates General Background.
U.S. law limits how many people can get green cards every year based on Employment-Based (EB) immigration. The limits are relatively convoluted but are sub-divided by category (EB1/EB2/EB3), and nationality.
The general limit is 140,000 EB green cards every fiscal year. (Some years, including this year, there is a larger allocation due to technical reasons).
The U.S. government’s fiscal year runs from October 1 to September 30.
So, we are currently in FY2023, which started on October 1, 2022, and will end on September 30, 2023.
Because there are generally more people seeking green cards than are available, in some categories, the U.S. government uses cut-off dates to basically create a ‘waiting line’ for green cards. But keep in mind that the cut-off dates are based on adjudications. If people filed 500,000 cases but none of them were approved, then USCIS would not be using up the EB immigrant visa allotment. The allotment is used up when the cases are approved.
The U.S. Department of State publishes a monthly Visa Bulletin to explain to the public where they are in the queue. I have written several articles about the Visa Bulletin and how the cut-off dates are determined. You can find a Primer here.
“Per Country” limits - India/China/Spillover.
The two most populous countries in the world, India and China, are the two countries who generally have cut-off dates on the Visa Bulletin. This is because U.S. law limits how many green cards can be given to any one country. And because they are the most populous countries, with the most people trying to immigrate, they face the most severe backlogs.
U.S. law basically allocates the same number of green cards each fiscal year to India as to Iceland, so naturally India is generally oversubscribed and Iceland is not.
The rules are complicated but in some years India and China and any “oversubscribed” country is able to get more green cards than their general allotment based on other countries not using all of theirs theoretical immigrant visas (Green Cards). This concept is known as ‘spillover.’ The concept of spillover can be very useful for people from India and China seeking green cards since the demand is so high for immigrants from those countries that they benefit when unused immigrant visas ‘spillover’ to them.
Expansion of Premium Processing to new I-140 Categories.
On January 12, 2023, USCIS expanded premium processing to 2 categories where premium processing was not traditionally available - namely EB1(3) intracompany transferee managers and EB-2 NIW. You can read the USCIS announcement expanding premium processing here.
These are two categories of I-140s which are popular with immigrants throughout the world, that is, they are not just categories popular with Indian and Chinese-born immigrants.
So there are basically now two types of premium processing I-140s —
the traditional kind where the premium processing request will result in case review within 15 calendar days of the premium processing request; and
the new premium processing for EB1(3) and EB-2 NIW which will result in case review within 45 calendar days of the premium processing request.
I-140 petitions are either filed by employers or they are filed by individuals. Individuals can file self-petition I-140s in two categories: EB-1A and EB-2 NIW.
Faster processing of I-140s is beneficial for various reasons:
If the candidate is in H-1B status, and the candidate’s spouse is in H-4 status, the faster I-140 approval result in faster H-4 EAD work authorization for the spouse.
Faster processing of the I-140 gives the candidate peace of mind that he/she has cleared the I-140 stage.
And most important: Faster processing of the I-140 gives the candidate who has also filed an I-485 application a faster track to get the I-485 approved and the green card issued. The I-485 process is the final stage green card process, and it is not possible for an EB-based I-485 application to be approved prior to the I-140. So if the I-140 was processing slowly, then the I-485 will also be slow. Faster processing on the I-140 allows for possible faster processing on the EB I-485s.
USCIS’ new & improved way for processing EB I-485s.
During calendar year 2022, USCIS implemented a new system for processing EB I-485 applications. The traditional process involved EB I-485 applications being reviewed and approved by two regional service centers - Nebraska and Texas. That system had created a major backlog in processing times and USCIS was under tremendous pressure to make sure it was using up the full allotment of EB immigrant visas (green cards) for FY2022.
The process change implemented by USCIS means that EB I-485 applications are now processed by field offices all over the United States.
It is not clear how the EB I-485 files are now distributed - it might be based simply on workload; but the current reality is an EB I-485 applicant in the Midwest might have his and his family’s I-485 applications reviewed by the USCIS field office in New Jersey, and an EB I-485 applicant in New Jersey might have her I-485 application reviewed by a USCIS field office in Kansas.
The result of the process change has been historically fast (and actually quite reasonable) adjudications. With an approved I-140, and a priority date current, we are often seeing EB I-485 applications approved in 6 months or less, a processing time that has not existed for EB I-485 applications for 20+ years.
The Likely Emergence of More Cut-Off Dates
The purpose of this post was to explain how expanded premium processing was going to result in expanded cut-off dates on the Visa Bulletin.
My point (after all the blah, blah, blah above!) — If you combine the expanded availability of premium processing (which includes categories used often by immigrants NOT born in India or China), and you add that faster I-140 processing to the faster I-485 processing by the USCIS field offices, the net result is overall faster processing of cases (a good thing!).
HOWEVER, faster processing of I-140s and I-485s will mean faster use of the annual allotment of EB immigrant visas (green cards).
And if USCIS uses the full allotment of annual EB immigrant visas, it means there will NOT be any visa numbers available to spill over to Indians and Chinese who traditionally benefit from spillover to increase the number of cases they can get approved. This means cut-off dates will become more prevalent to ROW (Rest of World) and forward movement for India and China will be slower.
As the EB immigrant visa numbers are used, cut-off dates are introduced into more categories and nationalities. We now see a cut-off date for EB-1 India/China as well as EB-2 ROW (Rest of World). I discussed the expansion of cut-off dates here.
Barring changes in the law or other changes in policy for processing by USCIS, what I imagine we will be seeing in the future is chunks of time during the year when few people of all nationalities are able to file I-485 applications, but when they do file their I-485 applications, they will be processed faster.
The emerging situation for EB I-485s is increasing akin to H-1B cap lottery processing. The H-1B cap lottery was invented because the annual allotment of H-1Bs only lasted one day each year. So many people wanted H-1Bs each year that they created the lottery, and eventually the lottery was converted to an electronic registration system (and lottery).
In the case of EB immigration and I-485 processing, it will not end up a lottery as there is a queue.
In the H-1B cap system, there is no queue. You just try again year after year.
In the EB immigration (permanent resident processing) system, there is a queue so you wait and it is not a lottery every year on who gets to file their I-485.
Because there will be no lottery, if USCIS continues to offer premium processing on all I-140s and continues to process EB I-485s quickly, there will become a seasonal window to file EB I-485s, starting around October 1 each year (at the start of the fiscal year).
This assumes no change in the law or process.
Note: USCIS will like the seasonality of EB I-485 processing as they can hurry and process all the EB I-485s in the fall, then re-allocate resources to other things. It would not surprise me if other case types are not distributed to the national field offices as the agency continues to make other policy changes like approving marriage green card cases without interviews, further freeing up capacity for field office adjudicators to do other things.