The United States Citizenship and Immigration Services (USCIS) announced that the employment-based (EB) annual limit for the Fiscal Year (FY) 2023, would be higher than that which was typically expected before the pandemic. They have also indicated that the intake maybe possibly lower than that in Fiscal Year 2021 and Fiscal Year 2022. In consideration of the same, they intend to utilize all of the available employment-based visas for the Fiscal Year 2023, ending on 30th September 2023.
We have compiled a list of relevant questions or queries that may arise for a petitioner with regard to these employment-based visas.
Q. How many Family-Sponsored or Employment-Based Immigrant Visas may be utilized by USCIS and DOS during FY 2022?
A. It has been determined by the Department of State (DOS) that the annual limit of employment-based visas was more than double the typical annual total at 281,507 visas for FY 2022, owing to the unused family-based visas from FY 2021 being allocated to the employment-based visas. By 30th September 2022, the end of the fiscal year, the two aforementioned agencies used up all of these employment-based visas, apart from 6,396 EB-5 visas which have been carried over to the next fiscal year by Congress. More than 220,000 employment-based adjustments of status applications for individuals already present in the U.S. has been approved by the USCIS and Executive Office for Immigration Review (EOIR). These figures are based on the update provided by USCIS as of 26th October 2022.
Q. Can the number of Employment-Based Immigrant Visas to be issued by USCIS and DOS be estimated?
A. The Department of State estimates the annual limit for FY 2023 would be around 197,000 which includes the approximately 57,000 unused family-sponsored visas from FY 2022 being added to the Employment-Based Visas for FY 2023. These figures are based on the update provided by USCIS as of 26th October 2022.
Q. What could be the probable distribution of the 57,000 unused family-sponsored visas between the various categories of Employment-Based Visas?
A. Under the ambit of INA 203(b), Congress shall divide overall EB visas annual limit across 5 categories on fixed percentages. EB-1, EB-2 and EB-3 visas shall receive 28.6% of the overall limit, each while the limits assigned to EB-4 and EB-5 visas stand at 7.1% each.
Q. What could be the probable distribution of the unused family-sponsored visas between the various categories of Employment-Based Visas in accordance with per-country limits?
A. Under the ambit of INA 201(d)(2), the unused family-sponsored visas from the previous fiscal year shall be added to the overall employment-based limit. Further, under the ambit of INA 203(b), the per-country limits are in effect barring the exemptions to country limits under INA 202(a)(5) applies within this category. It should also be noted that the unused visas added to the employment-based limits are not automatically distributed to the applicants with the earliest priority dates, as the per-country limits still apply.
Q. Why do the dates in the Visa Bulletin sometimes retrogress?
A. Under the ambit of INA 203(g), the Department of State is directed by Congress to make reasonable estimates of the anticipated number of visas issued quarterly during a Financial Year and relies on these estimates in authorizing the issuance of visas, however, these estimates computed by the DOS in collaboration with the USCIS cannot exactly predict the number of applications for Adjustment of Status (AOS) or an immigrant visa. The number of visas available on the basis of category or country also varies throughout the year. The Congress sets very strict and detailed annual limits and rules for visa distribution and has created a system in which DOS adjusts the population of noncitizens who could potentially apply for an immigrant visa so as to artificially create sufficient demand for such visas, this could potentially lead to regression of a Final Action Date as demand for visas could be higher than estimated and availability lower than that of what was estimated. This is done in order to ensure that visa usage remains within the limits established by Congress.
Q. Why has DOS applied new Final Action Dates or retrogressed certain Final Action Dates in the Visa Bulletin for October 2022?
A. With regards to the October 2022 Visa Bulletin, without a regression of the Final Action Dates for India EB-2 visas, the two agencies, namely DOS and USCIS would have been in violation of the statutes applicable, the visa usage would have likely exceeded the applicable availability within the first few weeks of the Fiscal Year. As mentioned above, these visas are based on reasonable estimates made by the DOS in collaboration with USCIS and also take into consideration any pending inventory of AOS and immigrant visa applications. A plethora of factors are considered, for these estimations, including but not limited to:
• Potential that a certain percentage of the applications would not be approved.
• Accounts for noncitizens who have multiple pending AOS applications across various applicable categories.
• Considers the no. of family members who would apply along with the main applicant.
• Considers the status of applications already in the adjudication process and how likely are they to be approved and used immediately in the future.
• Considers AOS applicants with multiple pending or approved petitions in different EB categories and accounts for the percentage who might decide to transfer within these categories.
In certain scenarios, DOS applies early cut-off dates in the Final Action Dates chart in consideration of excess applications for a particular category or country limit in order to stay within the quarterly and annual limits, category and per-country limits, and stay within the ambit of applicable law.
Q. Effect of retrogression on priority date or place in line for an immigrant visa?
A. It should be noted that DOS and USCIS are authorized to issue immigrant visa numbers only if the applicant in the given family-sponsored or employment-based preference category has a priority date earlier than that of the Final Action Dates chart for their respective category and country.
Q. Effect of retrogression on eligibility for exemption from the 6-year limit on H-1B status?
A. Under the ambit of INA 214(g)(4), the period of “authorized admission” may not exceed 6 years barring certain exemptions to this limitation under the purview of Section 104(c) of the American Competitiveness in the Twenty-First Century Act and codified in regulation in 8CFR214.2(h)(13)(iii)(E), wherein USCIS may in its discretion grant additional periods of authorized stay in terms of up to 3 years for a noncitizen who currently holds or previously held H-1B status, someone who holds an approved EB-1, EB-2 or EB-3 visa petition or someone who is eligible to be granted LPR status in one of the aforementioned categories, but for the application of the limits set per country. With regards to applicants of AOS who are eligible for the exemption but don’t have an immigrant visa in the form of an EB-1, EB-2, or EB-3 due to application of per-country limits, in such cases as well the USCIS could grant an extension of up to 3 years.
Q. Does retrogression, issuance of an RFE (Request for Evidence), issuance of a NOID (Notice of Intent to Deny) or the scheduling of an interview reset the 180 days portability clock?
A. There is no action of resetting the 180 days portability clock due to retrogression, issuance of an RFE or NOID, or scheduling of an interview.
Q. Do biometrics expire due to retrogression?
A. There is no effect of the expiration of biometrics due to retrogression. Biometrics collected for an AOS while pending will not expire. While the biometrics-based background check is valid for a span of 15 months, USCIS refreshes them by resubmitting the previously provided biometrics, a new appointment for the same is not required.
ALLOCATION OF VISA NUMBERS
Q. Does the status “Current” for a category or country in the Visa Bulletin indicate that there must be little or no inventory of pending Applications with the DOS or the USCIS for that category or country?
A. The status “Current” in the Visa Bulletin is not an indication of little or no inventory of pending applications. As long as there is a sufficient number of visas remaining, a category or country’s status shows “Current”.
Q. If visas are not required/mandated for certain Employment-Based Categories, are they made available to other Employment-Based Categories?
A. Congress has laid down certain statutory provisions to allow for flow of visas that are “not required/mandated” to be made available to applicants in other employment-based categories, commonly referred to as fall up/fall down provisions, they find their ambit in INA 203(b) wherein visas not required under EB-4 and unreserved visas under EB-5 are made available to EB-1, visas not required in EB-1 are made available in EB-2, visas not required in EB-2 are made available in EB-3.
Q. Why doesn’t USCIS allow noncitizens to apply for AOS based on the Dates for filing chart every month?
A. Upon determination by USCIS that there are immigrant visas available for filing AOS applications, noncitizens shall adhere to the Dates for Filing chart to determine when to file the application, they could also see the Final Action Dates chart to determine date of filing their application.
Q. When do the exemptions to the per-country levels for EB categories apply?
A. Under the ambit of INA 202(a)(5)(A), if the total no. of visas available in any one of the EB categories for a calendar quarter is greater than the number of applicants who are qualified, then the visas made available in this particular category can be issued without regard to per-country numerical limitation.
Q. When is a visa number subtracted from the annual limit?
A. A visa number can be subtracted from the annual limit in the following scenarios:
• The DOS issues an immigrant visa to a noncitizen through consular processing.
• When USCIS, Department of Justice, or the Executive Office for Immigration Review (EOIR) approves noncitizens’ lawful permanent resident status upon approval of their AOS application.
A visa number is not subtracted from the annual limit based on any other preliminary step of the adjudication process. It should also be noted that in the scenario that USCIS approves an AOS for the principal applicant, but the dependent’s application is still in the process of adjudication, the visa number is not subtracted from the annual limit for the dependent family members.
Q. Cross-changeability and its application by USCIS?
A. Under the ambit of INA 202(b), cross-chargeability could be defined as a scenario wherein for the benefit of the applicant, they charge their visa number to their spouses or parent’s country of birth rather than their own. Whenever possible, USCIS applies this principle to preserve family unity so as to allow family members to immigrate together, this is generally used when the preference quota for the particular category is backlogged for one spouse’s country of chargeability, but it is current for the other spouse’s country of chargeability.
Q. Implication of the phrase “visa available” when referred to in tandem with AOS pending applications?
A. With regards to pending AOS applications, the phrase “visa available” means that the applicant of the family-based visa or employment-based visa has a priority date earlier than that shown in the Final Action Dates chart of the Visa Bulletin for their respective country or category. It is important to note that just because a visa is available for issuance does not amount to an actual allocation.
Q. Process of USCIS while determining if an immigrant visa is “immediately available” during pending adjudication of an AOS application?
A. As per the regulations, an immigrant visa for a family-sponsored or employment-based visa “is considered available for accepting and processing” the adjustment of status application in the scenario that the applicant has a priority date earlier than that shown in the Visa Bulletin for their respective country or category, in order to make this determination, USCIS consults the appropriate Visa Bulletin (Final Action Dates or Dates for Filing) for the respective month as per the time of receipt of the application at the correct USCIS filing location. USCIS posts which charts may be used on its Adjustment of Status Filing Charts from the Visa Bulletin.
Q. When is a derivative child’s applicant age locked under CSPA (Child Status Protection Act), and how is the age calculated?
A. With regards to EB categories, a child’s age under the CSPA is the biological age of the child at the time of visa availability, minus the amount of time since when the application is pending, but this is applicable only if the child seeks to acquire status as a lawful permanent resident within a year the date a visa is available.
Q. When USCIS adjudicates an AOS for a principal applicant, will they also adjudicate the AOS of dependent family members? What is the scenario when the dependent family members aren’t approved before priority dates move back?
A. USCIS always aims to adjudicate the application of the Principal Applicant and their dependent members at the same time, but in certain instances, this is not possible, in such scenarios the application of the dependent is deemed pending till a visa number is available, the DOS allows a visa and USCIS is done with adjudication, such an action is done in the scenario that a form I-485 of a derivative/dependent family member is deemed approvable and a visa number is not available on the basis of the Final Action Dates chart.
Q. If an application for an AOS as a principal applicant is applied for, and the principal applicant’s spouse applies as a dependent family member but due to the unavailability of visas based on the petition of the principal applicant but are available on the dependent family members petition, could the pending AOS be transferred to the spouse’s petition?
A. In the aforestated scenario it is possible to transfer the AOS to the spouses’ petitions, in the instant scenario where more than one or more petitions could serve as the underlying basis for their AOS thus they can request to transfer the petition.
TRANSFER OF UNDERLYING BASIS
Q. What is the procedure with regard to the transfer of the underlying basis?
A. An application for transfer of underlying basis request should be sent to the centralized location prescribed by USCIS for employment-based categories accompanied with Form I-485 Supplement J.
Q. How does a transfer of underlying basis request affect the calculation of a child’s age under CSPA?
A. In accordance with Volume 7, Part A, Chapter 7 of the USCIS Policy Manual, in the scenario that the applicant has multiple approved applications, then the child’s age as per CSPA is calculated using the petition underlying the AOS application. Upon approval of a transfer of the underlying basis of the pending AOS application, the child’s age is calculated using the CSPA using the approved petition to form the new basis of the adjustment application. In the scenario it is transferred, then the child’s age under CSPA is calculated at the time the immigrant visa becomes available in a new category (the time the petition that forms the new basis of AOS is pending is subtracted).
Q. If the petition underlying the applicant’s pending AOS application is in the process of adjudication, would the applicant be prevented from transferring the basis to another person?
A. It has been clarified by USCIS that if a petition is pending adjudication, it does not hinder granting a request to transfer pending Form I-485 to another Form I-140.
Q. Why should the applicant transfer the underlying basis of the Form I-485 pending adjudication, why can’t USCIS review its records and adjudicate this matter?
A. USCIS has discretionary power to grant the transfer, upon such a grant of transfer, the matter would be adjudicated based on the petition to which the Form I-485 was transferred. In the event that USCIS does not grant the transfer, adjudication takes place on the basis of Form I-485 prior to the transfer request. The reason why USCIS does not review its record and adjudicate this matter is because USCIS considers a matter with no presumption of prior information.
Q. What happens when an EB-3 I-140 downgraded petition is pending and attached to a still pending Form I-485, does the EB-3 I-140 need to be approved to allow a transfer of the underlying basis of the Form I-485 to an approved EB-2 I-140 where the EB-2 priority date is considered as ‘current’ under the Final Action Dates?
A. USCIS has discretionary power to grant the applicant’s request to transfer, a pending EB-3 petition in the aforementioned scenario doesn’t prevent USCIS from granting the applicant’s request for transfer of their pending Form-I-485 to a separate approved Form I-140.
Q. Does a grant or transfer of an underlying basis request equate to the allocation of an immigrant visa?
A. A grant of an applicant’s transfer request does not mean that an immigrant visa has been allocated to the applicant.
Q. In the scenario that USCIS grants transfer of underlying basis request, would USCIS consider the applicant’s eligibility for AOS on both bases?
A. A grant of transfer of underlying basis request of an applicant does not mean that USCIS would consider the applicant’s eligibility for AOS on both bases, USCIS will only adjudicate the most recently granted transfer request.
FILING AND PROCESSING
Q. Should Form I-693 be submitted with Form I-485 while applying for AOS?
A. USCIS encourages submission of Form I-693 along with the AOS application, as it would help limit the need for USCIS to send an RFE, reduce processing time, and aids the process of USCIS as USCIS works with DOS to use all available visas.
Q. Should an applicant who has a pending Form I-485 send in their Form I-693 or wait till it is requested by USCIS?
A. It has been suggested by USCIS that an applicant whose AOS is pending should not send in an unsolicited Form I-693 as it would be difficult to match to the relevant Form I-485 which could hinder the adjudication of the Form I-693 in a timely manner and cause unnecessary delays. In the scenario that an underlying petition is approved, a visa is available to the applicant, and the application has been filed without a valid Form I-693, USCIS suggests that a valid Form I-693 should be kept ready to adjudicate the matter in a timely fashion when USCIS requests for a Form I-693.
Q. If an applicant’s immigrant visa has been approved and there is a pending AOS application, how would USCIS tackle such a scenario?
A. It has been clarified by USCIS that in FY 2023, USCIS intends to transfer the AOS application in the first three applicable employment-based preferred categories, USCIS shall transfer the application from TSC (Texas Service Center) and NSC (Nebraska Service Center) to NBC (National Benefits Center) after the approval of the petition, in order to let the Field Operations Director to adjudicate the matter.
Q. In the scenario that an applicant has more than one pending application for AOS, and USCIS approves one of the applications, what would it do with the others?
A. In the scenario that a noncitizen becomes a lawful permanent resident of the United States of America through approval of any AOS application, USCIS would deny any other adjudication pending AOS applications.
Q. What does the “Case Remains Pending” message mean when a petition/application is looked up on the USCIS Case Status Online tool?
A. If the message stating “Case Remains Pending” pops up upon search of a petition or an application on the USCIS Case Status tool, then it means that the said petition or application is still in the process of adjudication.
Q. Why did certain AOS applicants see their case status change to “Case Was Updated to Show Fingerprints Were Taken” in USCIS Case Status Online Tool in early FY 2023, although they provided biometrics months earlier?
A. USCIS has intimated that this notification had popped up for more than 100,000 applicants as a result of an internal update made to the USCIS systems for those applicants who had previously provided biometrics. It should be noted that the case is pending adjudication.
Q. Why do AOS applicants who lived in the USA for many years have to demonstrate that they aren’t inadmissible on health-related grounds of INA 212(a)(1)?
A. Under the ambit of INA 245(A), USCIS may adjust the status of noncitizens only upon proving they aren’t inadmissible on health-related grounds, though certain general exemptions apply, it should be noted that USCIS in this matter cannot create a waiver where Congress has not done so themselves.