Visa Bulletin: A Primer for Employment-Based (EB) Immigrants
This post provides a basic explanation of the Visa Bulletin and "retrogression" that so often impacts India (+ China) cut-off dates. (Watch for a separate post on the Oct 2022 bulletin, coming soon).
While imperfect, my best explanation of the Visa Bulletin involves thinking about a garden hose - with the spigot connected to the house; and the nozzle connected to the other end, which you spray on your garden.
But before I get into my 'garden hose’ comparison, some background -
01 - The Visa Bulletin and the Fiscal Year Calendar.
The Visa Bulletin is published every month by the U.S. Department of State as a way of advising the public about how many green cards are available in any given month. It is actually a very important document to understand U.S. immigration law.
For many categories of immigrants, there are so many people seeking green cards (that is, demand exceeds supply), there are often cut-off dates listed on the Visa Bulletin. The Visa Bulletin provides information for both Family-Based (FB) and Employment-Based (EB) immigration, as well as the Diversity (DV) lottery.
This post focuses on EB immigration.
A key thing to understand about the Visa Bulletin is that the “cut-off dates” published have a relationship to the calendar. In this way, there is a bit of a ‘cadence’ - tied to the fiscal year.
The U.S. government’s fiscal year starts October 1 each year, and ends September 30 each year. Certain things happen at the beginning of the year and other things happen at the end of the year.
As of the time of this post, we are completing fiscal year 2022 (September 2022), and we will start fiscal year 2023 on October 1, 2022.
Since October 2015, the Visa Bulletin has included “two charts” - the use of two charts is in theory supposed to facilitate more efficient processing of green cards. In reality, it basically adds confusion to an already confusing process.
Each month, the Visa Bulletin is published with 2 charts and each month USCIS can choose which of the two charts to use. Because the vast majority of EB immigrants are going to obtain their green card through the I-485 adjustment of status process (versus the alternative immigrant visa process), the USCIS chart regarding I-485 processing is the key chart to consider.
At the beginning of the fiscal year, USCIS is much more likely to use “Chart B” which tends to have ‘better’ cut-off dates. At the end of the fiscal year, USCIS more commonly uses “Chart A.” This is one trend that has occurred since 2015 when the two charts started.
Another thing to know: Each year the July visa bulletin tends to be important. This is because July is the first month of the last quarter of the fiscal year, and due to technical rules on how things are tracked, there is often a big jump forward in July.
If USCIS is doing its job and processing EB I-485 applications in a timely way, then there is a real possibility that certain categories become “unavailable” at the end of the fiscal year - meaning that there may be no green cards available in August and/or September (the last 2 months of the fiscal year). We have not seen that for a few years, because we have faced very slow processing during the pandemic and relatively slow processing during the Trump years.
I anticipate that in FY2023 (October 2022 to September 2023) - there is a real possibility USCIS will run out of immigrant visas in summer 2023. Running out of immigrant visas might impact a variety of categories and so people who are not familiar with backlogs (Europeans, South Americans, and basically everyone other than Indians and Chinese-born) should plan accordingly.
02 - U.S. Department of State (DOS) versus USCIS
As noted above, the U.S. Department of State (DOS) issues the Visa Bulletin and the vast majority of FB immigrants do process through the DOS consulates worldwide. However, EB immigrants are much more likely to process for their green card through the I-485 adjustment of status process. This creates some inherent inefficiency.
Over the years DOS and USCIS have improved communication and now in fall 2022 they have tried to be seamless in their communication and understanding of how things are going.
Nevertheless, the “two chart” system still exists and DOS still issues two charts with every Visa Bulletin and USCIS chooses which chart to use. You can find the USCIS adjustment of status filing charts here.
Note that the adjustment of status filing chart is particularly important for FILING an I-485 application (final stage green card application); but in order for an I-485 application to be approved, a priority date must be current per the FINAL ACTION CHART (Chart A).
So even if USCIS has announced it is using Chart B, as it did for October 2022, only people whose priority date is current per Chart A is eligible to be approved for a green card.
It is a frustratingly confusing system!
03 - “Per Country” Limits.
EB immigrants from most nationalities never really pay attention to the Visa Bulletin. This is because the special backlogs for EB immigrants generally only afflict immigrants of certain nationalities - most commonly people born in India and people born in People’s Republic of China (PRC).
The reason that only certain nationalities are impacted by backlogs is because U.S. law has “per country” limits, that is, limits on how many people can obtain green cards based on country of birth. And India and China in particular have so many people seeking to immigrate that those nationalities have special cut-off dates associated with them.
The law limits how many people from any one country can get a green card.
A few notes about the “per country” limits:
The limits apply to COUNTRY OF BIRTH (not country of citizenship). A person born in India who is a citizen of Canada is NOT permitted to use the Canadian country limit. He must use his country of birth (India).
It IS PERMISSIBLE to use a spouse’s country of birth. This is known as “cross-chargeability.” So if someone was born in India and marries someone born in Kenya (even if the person born in Kenya was an Indian citizen), it is permissible to use the spouse’s Kenyan immigrant visa quota. Country of birth is controlling.
Note that Cross-Chargeability applies to spouses, not children.
If a person was born in UAE and was never a UAE citizen, that is okay. The person can still use UAE as his country of birth for ‘chargeability.’ The term ‘chargeability’ is used to designate which country quota is charged for a given immigrant.
04 - Spigot/Nozzle (Supply/Demand and the Pipeline - or Hose)
So, regarding garden hoses - if you think of the Visa Bulletin as a garden hose, where the spigot is opened at the house as being akin to Chart B - letting people file I-485 applications.
Then the approvals of I-485 applications is akin to the nozzle at the other end.
The US government wants to approve the maximum number of green cards each fiscal year, no more or no less. But in order to approve the right number of EB immigrant visas, there must be sufficient I-485s “in the pipeline.” The process is not instant.
If the Visa Bulletin opens up and the cut-off dates for India, for example, move forward such that 200,000 people are eligible to file I-485 applications, and out of those 200k, only 150,000 people actually file I-485s; but perhaps there are only 80,000 green cards available, then there will be excess people in the pipeline and so they will keep the nozzle turned off to keep those people in the pipeline (or garden hose) until there are immigrant visas available.
The DOS and USCIS do not always know precisely how many people will file so there is a disjointed process each fiscal year where DOS tries to settle on the right date to meet demand but not exceed supply.
The DOS wants to get enough applications ‘into the hose’ (into the pipeline) so periodically it opens things up (moves cut-off dates forward), to allow a lot to get people into the I-485 stage, then regulates more tightly the approvals coming out the other end, to ensure it complies with the per country limits and other rules associated with the legal distribution of approvals by nationality.
Over the past 20 years, there have been brief ‘seasons’ when DOS opened the spigot widely to fill the hose (pipeline of I-485s) and then close the nozzle at the other end (Chart A). We have just gone through such a season from October 2020 to September 2022.
PS - The added benefit of using this comparison to a spigot and nozzle is that people who are able to file their I-485s but are stuck in the middle, something commonly called “retrogression” - but you can call it “GETTING HOSED!”
CONCLUSION
I hope this post has been useful as an overview on the Visa Bulletin and cut-off dates for EB immigrants. If you have any questions, please share them in the Comments.
To subscribe to the visa bulletin, or read more about the visa bulletin from the official U.S. Department of State website, go here.
I will be doing a second post soon with specific thoughts about the October 2022 Visa Bulletin, which was slightly shocking. That post will look back at July 2007, 2012, and October 2015 - which were other periods of extreme movement in Indian cut-off dates.