September 2019 Visa Bulletin Update

You may have seen articles discussing next month’s “Visa Bulletin” and what it means for employment-based visa preference categories. But what is the Visa Bulletin in the first place and what’s so interesting about the September 2019 Bulletin publication?

The Immigration and Nationality Act (INA) sets limits on the number of immigrant visas which can be issued each year. Eligibility for an immigrant visa or permanent residency in the United States (a.k.a. “the green card”) depends partly on the particular visa preference category under which they fall as well as when the petition on their behalf was filed and on demand for the green card in the individual’s “chargeability” country. The visa preference category is the sub-category under which one qualifies for the green card (e.g. F-1, F-2B in the family immigration context or EB-1, EB-2, EB-3 in the employment immigration context). The country of chargeability is generally the country of birth of the applicant (or in some instances that of their spouse or parent). Thus, visa category, country of birth, and the petition filing date known as an individual’s “priority date” directly impact the processing time (or time on the wait list) for the green card. The policy applies to both family-based green card sponsorship, which involves filing a Form I-130 sponsorship petition, and employment-based sponsorship categories, which usually involves filing a Form I-140 sponsorship petition (or an I-526 Investor Petition for the EB-5 category).

To manage this multi-faceted green card quota system, each month the U.S. Department of State (DOS) issues a Visa Bulletin summarizing the availability of immigrant visa numbers for the following month. The Visa Bulletin lists visa availability separately for the Family Preferences and the Employment Preferences. Each Chart provides dates broken out by visa category, priority date, and country of birth. Prior to 2015, the Visa Bulletin only had one Chart for each of the preferences. The two Chart system was introduced to help better manage the process. Chart B was added to indicate who could take the final step to apply for the green card and Chart A would as before continue to indicate actual availability under the quota for final action. Today, unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website, individuals seeking to file green card applications with USCIS must use Chart A to determine when they can file such applications. If USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use Chart B to determine when they can file. In practice, Chart A, not Chart B, has rather consistently continued to be the operative Chart to confirm when an applicant can take the final step in the green card process.

Notwithstanding these layers of complexity, using the relevant Chart for the month, if the visa category for your country of birth is listed as "Current," that generally means you can file an application regardless of your priority date. If there is a date listed, that means you are only eligible to apply for the green card if you have a priority date earlier than the cutoff date listed. If the term "Unavailable" is listed, that indicates that the annual limit for that visa group has been reached, so no further green card application requests in that group will be honored through the end of the fiscal year.

Now that we have that background, what's so interesting about the September 2019 Visa Bulletin, particularly as it relates to the employment-based visa categories? First, since the federal government begins its fiscal year on October 1, the September Visa Bulletin always marks the last indicator of visa demand and the culmination of trends from the prior year. This year's September Bulletin indicates several visa categories are unavailable until October 1, including all of the EB-4 category and the EB-1 visa category for nationals of India. The EB-1 category for nationals of China is not listed as unavailable but did retrogress by 30 months due to increased demand. Finally, while it's not reflected on the current version of the Bulletin posted, the entire EB-3 category has also been deemed “Unavailable" for the remainder of fiscal year 2019 based on demand for green cards in that visa category. This means that the annual limits have actually been reached in this category and additional numbers are thus unavailable until October 1 at the earliest under the quota for fiscal year 2020.

As a practical matter, if an employee has an EB-3 green card interview scheduled between now and September 30, it's possible that the immigration officer responsible for the case could decide to not proceed with the interview and reschedule it for another time. If the interview moves forward and the application is deemed approvable, the application will be held until a visa number does become available again.

It will be interesting to see whether and by how much the October 2019 Visa Bulletin "resets" the cutoff dates for many categories that retrogressed significantly over the last few months.