Important Takeaways from the December 2022 Visa Bulletin Affecting Employment-Based Green Card Waiting Times

The U.S. Department of State publishes the monthly Visa Bulletin, which is used to determine when beneficiaries of immigrant petitions can take steps to complete the permanent residence (green card) process. Individuals in the permanent residence process can check the Visa Bulletin to find out when they can apply for an immigrant visa or adjustment of status and when such applications can actually be approved.

The December 2022 Visa Bulletin provides some insights into the availability of employment-based green cards for December as well as in the coming months. We provide some of the notable highlights that may potentially affect certain employment-based applicants.

Employment-Based Preference Annual Limit for Fiscal Year 2023

Preliminary consolidated number use by the U.S. Department of State and USCIS for all of Fiscal Year 2022 shows there were approximately 57,000 unused family-sponsored visa numbers. As a result, the estimated employment-based annual limit will be 197,000 for Fiscal Year 2023.

Visa Availability in the Employment First Category for China and India

According to the December 2022 Visa Bulletin, increased demand and number use in the Employment First category, combined with decreased visa number availability for Fiscal Year 2023 compared to Fiscal Year 2022, will most likely necessitate the establishment of final action dates and application filing dates for China and India in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limits. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

Employment First category (EB-1) includes Individuals of Extraordinary Ability (EB-1A), Outstanding Professors and Researchers (EB-1B), and Multinational Managers and Executives (EB-1C). Individuals planning to apply under these categories should prepare for this potential establishment of final action and application filing cutoff dates and act accordingly.

Establishment of Employment Second Preference Final Action and Application Filing Dates

For December 2022, the U.S. Department of State established a worldwide Employment Second Preference final action and application filing dates effective in December to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. Except for China and India, all countries are subject to a final action date of November 1, 2022 and an application filing date of December 1, 2022. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

This category includes Professionals holding Advanced Degrees or Individuals of Exceptional Ability. This category also includes individuals applying for a National Interest Waiver and the establishment of a final action date and application filing date prevents such individuals from submitting a concurrent application for adjustment of status with an I-140 petition, unless they have a priority date earlier than December 1, 2022.

Retrogression of India Employment Second Preference Final Action and Application Filing Dates for December

Due to heavy applicant demand and significantly lower visa number availability for India Employment Second Preference category for Fiscal Year 2023, corrective action was taken in October to keep number use within the maximum allowed under the Fiscal Year 2023 annual limits. However, higher than expected levels of demand in the Employment First and Employment Second categories has materialized this year, and as a result, fewer additional numbers will be available to India in the Employment Second category than originally estimated when the October and November final action and application filing dates were established. Therefore, further corrective action has been necessary to ensure that the limited supply of visa numbers is allocated by priority date. The situation will be continually monitored, and any necessary adjustments made accordingly.

Forward Movement of China and India Employment Third Preference for December

According to the December 2022 Visa Bulletin, the India Employment Third Preference category (EB-3) Final Action will advance by more than two months to June 15, 2012, and the Dates for Filing cutoff will advance by one month to August 1, 2012. In addition, the EB-3 China Professional/Skilled Workers category will advance by six weeks, to August 1, 2018 for Final Action, and to September 1, 2018 for Dates for Filing.

USCIS has announced that individuals who qualify for Adjustment of Status can submit their employment-based forms I-485 during the month of December based on the "Dates for Filing" charts.

Individuals applying through the above-referenced employment-based categories should continue to monitor the Visa Bulletin in the coming months and consult with an experienced immigration attorney to determine the best action in anticipation of the above developments.