The Department of State released the May 2023 Visa Bulletin. There are a few notable developments for employment-based applicants, including further retrogression and expected retrogression for several categories:
- USCIS will continue to accept employment-based Adjustment of Status applications based on Final Action Dates rather than the more advanced Dates for Filing chart.
- EB-1 India and China will hold steady with a cutoff date of February 1, 2022.
- EB-2 will retrogress further to February 15, 2022 for all countries except India and China.
- EB-3 China will advance to April 1, 2019 and EB-3 India will hold steady at June 15, 2012.
- EB-3 for all countries except China will advance ahead of EB-2.
EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR FINAL ACTION DATES
USCIS confirmed that it will follow the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates are as follows:
EB-1, First Preference Category
- EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remain current
- EB-1 India and China maintain a Final Action cut-off date of February 1, 2022.
EB-2, Second Preference Category
- EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will retrogress by four and a half months to February 15, 2022. Foreign nationals with a priority date before February 15, 2022 are eligible to file adjustment of status applications.
- China: Final Action dates hold steady at June 8, 2019.
- India: Final Action dates hold steady at January 1, 2011.
EB-3, Third Preference Category (Professional and Skilled Workers)
- EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will retrogress to June 1, 2022. EB-3 for all countries except China will advance ahead of EB-2.
- China’s Final Action Dates advanced by five months to April 1, 2019.
- India’s Final Action dates hold steady at June 15, 2012.
EB-5: Fifth Preference Category (Immigrant Investors)
- For the EB-5 Unreserved categories (C5, T5, I5, and R5), China will advance by two months to September 8, 2015 and India cutoff dates will remain at June 1, 2018. All other countries will remain current.
- The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.
Individuals with a priority date that is either “current” or before the published cut-off date may file an adjustment of status application based on the dates outlined above.
WHAT SHOULD EMPLOYERS EXPECT?
As predicted in the March 2023 Visa Bulletin, due to increased demand, the State Department has established an EB-3 Professional/Skilled Workers Worldwide Final Action cutoff date and has further retrogressed the EB-2 Worldwide category. Given the advancement of EB-3 over EB-2 by at least four months for all countries except China, employers may consider downgrading EB-2 petitions to EB-3 petitions if it will allow the sponsored foreign national to file an Adjustment of Status application in May.
The May 2023 Visa Bulletin notes that employers may expect further retrogression for EB-1 India and China in the coming months, as well as further retrogression for EB-2 and EB-5 India as early as June to keep immigrant visa number allocation within the FY 2023 annual limit. If further retrogression occurs, it is anticipated that once the new fiscal year commences on October 1, 2023, Final Action Dates for EB-2 and EB-5 India will return to the dates reflected in the April Visa Bulletin. Further retrogression may also occur in the EB-3 Other Worker category for all countries except China and India due to ongoing demand.
The ability to file Adjustment of Status applications for employees will continue to be more challenging as the year moves on. Employers should work with immigration counsel to identify foreign nationals who are eligible to file Adjustment of Status applications in May. Additionally, it will be particularly important to file Adjustment of Status applications for Chinese and Indian nationals qualifying in the EB-1 category given the possibility of further retrogression in the coming months.
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