Visa Bulletin: Sept 2022 - Some thoughts
US Dept. of State acts confident about reaching the quota; USCIS announces use of "Final Action Chart" in September 2022; Mystery remains on whether there will be FB- to-EB spillover for FY2023.
August 8, 2022 - the US Department of State has just published today the September 2022 visa bulletin. Here are some thoughts…
Background on Visa Bulletin
Each month the U.S. Department of State issues the visa bulletin. The visa bulletin provides information on the supply and demand for immigrant visas (permanent resident visas).
In the area of Employment-Based (EB) immigration, the visa bulletin is particularly important to Indian-born immigrants who are hoping to file their I-485 final stage green card application or get their I-485 applications approved.
The September 2022 visa bulletin can be found here.
Understanding the 2 Charts - USCIS will use “Final Action Chart” (Chart A) in September 2022
Each month, after the U.S. Department of State issues the visa bulletin, the US Immigration Service (USCIS) has to decide which of the “two charts” it will honor for a given month. Since October 2015, the visa bulletin has published two charts each month for FB (family-based) immigration and two charts each month for EB (employment-based immigration.
When I think of USCIS deciding what chart to use, I am reminded of Groundhog’s Day where the groundhog decides whether there will be more winter. It seems similarly random.
But in all seriousness, the pattern on which chart to use is that it seems at the beginning of the fiscal year the USCIS will honor the “dates for filing” chart, but at the end of the fiscal year the USCIS will honor the “final action chart.”
Note that the names of the charts themselves in my view are very unfortunate and contribute to confusion and misunderstanding so sometimes it is useful to think of the “final action chart” as Chart A and the “dates for filing” chart as Chart B. I really wish the charts had different names.
For September 2022, USCIS has already announced it is honoring Chart A. September 2022 is the last month of the U.S. government’s fiscal year 2022.
Most EB immigrants are already in the United States in some kind of temporary visa status (like H-1B or L-1), and so they are participating in the I-485 adjustment of status process. Thus, analyzing which chart USCIS will use is important because USCIS will govern the processing of I-485 applications for people in the United States.
The USCIS “adjustment of status” filing charts can be found here.
For India EB2 and India EB3, the cut-off dates are exactly the same in August 2022 and September 2022.
EB2 India has a cut-off date of Dec 1, 2014;
EB3 India has a cut-off date of September 15, 2012.
What this means is that someone from India with a priority date before the cut-off date can file their I-485 adjustment of status application in August (or September) and also someone with a priority date before the cut-off date can have their I-485 application approved in August (or September.
Section D - Using Up the Quota?
Often at the end of the visa bulletin there are some important notes and special sections.
At the end of the September 2022 visa bulletin, Section D (excerpted above) provides a statement predicting that USCIS and the U.S. Department of State may use up all the employment-based immigrant visas. If that happens before the month ends, then certain categories may become “unavailable.”
Note that the general practice is that USCIS will still accept filings during that month, but will be unable to approve I-485 applications if a category or nationality becomes “unavailable.” With that said, it is always good to file I-485 applications early in the month when the priority date is current (if possible).
Historically, pre-pandemic, USCIS would occasionally use all the immigrant visa numbers for a given year and so in August and September (the last 2 months of the fiscal year), certain categories would become “unavailable.”
In the past 2 fiscal years - this year (FY2022) and last year (FY2021), USCIS had a record number of EB immigrant visas to use because of the ‘spillover effect.’ Last year USCIS failed miserably in using all the immigrant visa numbers but they are committed to meeting the quota this year.
Planning Ahead for October 2022 (FY2023)
The October 2022 visa bulletin should be issued in the middle of September. The October 2022 visa bulletin will have considerable interest from those of us who watch the visa bulletin closely.
The October 2022 visa bulletin will be the first visa bulletin in the U.S. government’s fiscal year 2023 (FY2023).
The October 2022 visa bulletin should provide insight as to whether there are any “spillover” immigrant visas from unused family-based immigrant visas. If the U.S. consulates did not use all the family-based immigrant visas in FY2022, then those unused family-based immigrant visas will “spillover” into EB immigrant visas for FY2023. The spillover is the reason the October and November 2020 visa bulletins jumped so far forward for EB2 and EB3 India.
The October 2022 visa bulletin may give us an indication as to how much EB2 and EB3 India cut-off dates will move during FY2023.
Prior to the pandemic, for many years, the EB2 and EB3 cut-off dates barely moved. And it remains an open question whether we are returning to that era, or whether something new is in store.
If you have questions about the visa bulletin and cut-off dates, or other related issues, feel free to post questions in the comments or email me directly.
Thanks for reading my newsletter!
As always, great insights! Is it possible that USCIS and DOS will not have final spillover data until mid-October when the November bulletin is issued? In other words, might November's bulletin be a more reliable indicator of how dates will move in FY2023?
And, thank you for the clear, helpful description of the two charts, the fact that USCIS chooses which one to use each month, and for linking USCIS's website where their chart choice is publicized. This information is something I've been sharing with my sponsored employee population and it is so important to understand, especially for Indian nationals who closely track the visa bulletin.