As Fiscal Year 2022 comes to a close, US Citizenship and Immigration Services (USCIS) signaled it has used nearly all available employment-based immigrant visas for the fiscal year and will exhaust the supply of visas by the end of September. Specifically, USCIS confirmed in a court declaration filed on September 6 that “as of September 6, 2022, there are no visas remaining for applicants from any country of chargeability in EB1 or EB2.”
What is an immigrant visa?
There are two paths for eligible foreign nationals to obtain lawful permanent residency in the United States. Those outside the U.S. can apply for an immigrant visa at a U.S. Embassy/Consulate, which is part of the Department of State. Once they receive the immigrant visa and move to the U.S., they will receive a permanent resident card (aka green card) from the USCIS. Those inside the U.S. in a lawful non-immigrant/temporary status can obtain permanent residency by applying to adjust their status to that of a Lawful Permanent Resident. They will receive a green card from the USCIS upon approval of their application. In this article, unless specified otherwise, “immigrant visa” refers to both immigrant visas issued abroad and green cards issued in the U.S.
How many immigrant visas are available?
Congress sets annual limits to the number of green cards or immigrant visas that can be issued. Today, there are 366,000 available annually, with a specific quota for each category. There are two main types of green cards: family-based green cards (226,000 available annually) and employment-based green cards (140,000 available annually).
Congress also limits the number of available green cards based on country of origin. Under this annual “per-country cap,” no single country of origin can account for more than 7% of the green cards in either category, which means that applicants from countries with high numbers of applications, such as China, India, Mexico or the Philippines, may face a substantial wait. There’s an exception to this “per‐country cap”: if the rest of the world will not use all the immigrant visas, the 7% per-country cap won’t apply.
As a direct result of COVID-19 lockdowns and limited resources at U.S. Embassies and Consular offices in the past three years, many family-based immigrant visas that the DOS did not process were carried over into the employment-based category the following year. In FY 2021, the number of employment-based immigrant visas was increased by more than 120,000 because of the number of family-based immigrant visas unused in FY2020. However, due to processing delays, USCIS didn’t finish issuing immigrant visas for all the cases and more than 66,000 employment-based immigrant visas went unused in FY2021.
In FY2022, there were an additional 140,000+ employment-based immigrant visas due to unused family-based immigrant visas carried over from FY2021.
How do I know when I can apply for an immigrant visa?
Each month, in coordination with the Department of State, USCIS monitors visa numbers and posts the relevant DOS Visa Bulletin chart. Applicants can use the charts to determine when to apply for adjustment of status or an immigrant visa. For a more detailed discussion about the visa bulletin, please check our July 2021 blog post.
What happens after the USCIS has used nearly all available employment-based immigrant visas for FY2022?
Now that USCIS has issued all the available immigrant visas in FY2022 (more than 280,000), USCIS will not be able to approve any additional I-485 applications during the month of September, and those applications for adjustment of status will remain pending until visas become available again in FY2023. However, USCIS should continue accepting applications for adjustment of status this month in accordance with the current September 2022 Visa Bulletin.
What will happen in FY2023?
DOS has released its first Visa Bulletin for FY2023 and currently estimates the FY2023 employment-based annual limit will be approximately 200,000, which includes 60,000 unused family-based immigrant visas carried over from FY2022. This annual limit will be higher than was typical before the pandemic, though lower than in FY2021 and FY2022.
In October 2022, employment-based applicants under EB-2 and EB-3 with a priority that is earlier than the date listed below for their preference category and country are eligible to apply for adjustment of status:
The “C” listing indicates that the category is current, and that applications for adjustment of status may be filed regardless of the applicant’s priority date.
We will monitor the trend and provide an update as USCIS releases more visa bulletins in the coming months.
Our Immigration Law Practice Group includes immigration attorneys working across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.