On September 08, 2022, USCIS published answers for frequently asked questions regarding Fiscal Year 2023 Employment-Based Adjustment of Status. Per USCIS, the employment-based (EB) annual limit for fiscal year (FY) 2023 will be higher than was typical before the pandemic, though lower than in FY 2021 and FY 2022. Also, please find answers to Frequently Asked Questions below:
Q1. Can you estimate family-sponsored or employment-based immigrant visa use by USCIS and DOS during FY 2022?
A1. The Department of State (DOS) has determined that the FY 2022 employment-based annual limit is 281,507 – more than double the typical annual total – due to unused family-based visa numbers from FY 2021 being allocated to the next fiscal year's available employment-based visas. Through August 31, 2022, the two agencies used 263,510 employment-based immigrant visas (FY 2022 data is preliminary and subject to change). Through late August USCIS had approved more than 210,000 employment-based adjustment of status applications for individuals already present in the United States. We remain committed to taking every viable policy and procedural action to maximize our use of all available visas by the end of the fiscal year and are well-positioned to use the remaining visas.
Q2. Can you estimate how many family-sponsored or employment-based immigrant visas USCIS and DOS will use during FY 2023?
A2. DOS currently estimates that the FY 2023 employment-based annual limit will be approximately 200,000, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023. USCIS is committed, with its partners at DOS, to using all the available employment-based visas in FY 2023. USCIS will continue to take multiple, proactive steps in coordination with its partners at DOS to maximize the issuance of visas.
Note: Our Immigration and Citizenship Data “All USCIS Application and Petition Form Types” and “Application for Adjustment of Status (Form I-485)” quarterly reports do not provide a comprehensive picture of employment-based visa use. The quarterly reports do not include the visas issued by our partners at DOS, and they include 4th preference employment-based categories under “other.” The quarterly “Legal Immigration and Adjustment of Status” reports published by the DHS Office of Immigration Statistics include adjustments of status but capture immigrant admissions at ports of entry rather than immigrant visa issuance by DOS, and as a result do not reflect year-to-date visa use. Neither report can be used to determine the number of employment-based immigrant visas used during a quarter.
Q3. If visas are “not required” in a particular employment-based category, are they made available in the other employment-based categories?
A3. Congress has established statutory provisions that allow for the flow of visas “not required” in certain employment-based categories to be made available to applicants in other employment-based categories. These are commonly referred to as the “Fall Down/Fall Up” provisions. Under INA 203(b), visas not required in EB-4 and unreserved visas not required in EB-5 are made available in EB-1. Visas not required in EB-1 are made available in EB-2, and visas not required in EB-2 are made available in EB-3. Congress did not create a pathway in the statute for visas not required in EB-3 to be made available in another employment-based category. Please note that with the enactment of the EB-5 Reform and Integrity Act of 2022 on March 15, 2022, Congress established special rules for the carryover of some unused EB-5 visas from one fiscal year to the next. As a result, not all EB-5 visas that are “not required” in that category can be made available in EB-1. Here is a simplified visual representation of what this looks like:
Q4. Why has DOS retrogressed (set back) certain Final Action Dates or applied new Final Action Dates in the Visa Bulletin for October 2022?
A4. In setting the first Visa Bulletin of the fiscal year each October, DOS makes reasonable estimates of the available employment-based immigrant visas in each category. It then, in collaboration with USCIS, reviews the pending inventory of adjustment of status and immigrant visa applications, makes reasonable estimates of new applications, estimates how many of the pending and newly filed applications are likely to result in visa use during the fiscal year, and compares those values to the available visas.
When estimating how many pending or newly filed applications are likely to result in visa use during a fiscal year, the agencies consider a variety of factors, including but not limited to:
the potential that a certain percentage of applications will not be approved; accounting for noncitizens who have multiple pending applications in different categories; estimating and considering the number of family members who may decide to immigrate with the principal applicant; and considering where applications are in the adjudication process and how likely they are to result in visa use in the immediate future. DOS and USCIS also take into account adjustment of status applicants with multiple pending or approved petitions in different EB categories who may decide to transfer between categories based on which category seems most advantageous to them.
When the amount of demand for a particular category (or a country within a category) exceeds the supply of visa numbers available, the category/country is considered “oversubscribed” and DOS applies a cut-off date in the Final Action Dates chart to ensure that visa use remains within the quarterly and annual limits, as well as the category and per-country limits, as established by Congress.
For example in the case of the October 2022 Visa Bulletin, without a retrogression of the Final Action Date for India EB-2, the two agencies would likely use all the available visas within the first few weeks of the fiscal year, in violation of the statute.
Q5. Does retrogression affect my priority date or place in line for an immigrant visa?
A5. If a noncitizen is seeking a visa in a preference category that required a labor certification from the Department of Labor (DOL), their priority date generally is the date DOL accepts the labor certification application for processing. For all other employment-based preference categories, the priority date generally is the date USCIS accepts the underlying petition for processing. Retrogression does not affect your priority date or your place in line for an immigrant visa. You may still receive a visa when one becomes available to you based on that priority date. Retrogression only means that due to the statutory limits, visas are not available to all noncitizens who want them, even if they have already filed an application for adjustment of status.
Q6. My category retrogressed or a Final Action Date was applied. What is my path forward to a Green Card?
A6. When a visa becomes available to you in the future based on the Final Action Date for your country and category as compared to your priority date, USCIS will be able to adjudicate your adjustment of status application. For as long as your I-485 application for adjustment of status is pending, you are eligible to seek certain benefits, among which are:
- You may apply for employment authorization, and that employment authorization, if granted, is not tied to a particular employer, position, or job classification, and is currently granted in increments of up to two years;
- You may apply for advance parole, which, if granted, authorizes you to travel outside of the United States during the advance parole validity period and apply for parole into the United States upon your return (at a U.S. port of entry) without abandoning your adjustment of status application;
- If your adjustment of status application has been pending with USCIS for 180 days or more, you may request to transfer or "port" your application to a qualifying new job offer;
- Depending on the facts of your case, your children who have also applied for adjustment of status as your derivative beneficiaries might not age out of eligibility to adjust status as your derivative beneficiaries; and
- You are considered to be "in a period of stay authorized" and do not accrue unlawful presence while your application is pending.
Q7. When is a derivative child's applicant age locked under the Child Status Protection Act, and how is that age calculated?
A7. In the employment-based preference categories, a child's age under the Child Status Protection Act (CSPA) is the child's biological age at the time of visa availability less the amount of time that the underlying petition was pending, but only if the child sought to acquire status as a lawful permanent resident within one year of the date a visa is available. For more information about when a visa is considered available for CSPA purposes as well as other details about CSPA, please see Volume 7, Part A, Chapter 7 of the USCIS Policy Manual.
Q8. If I am applying for adjustment of status, should I submit Form I-693 with my Form I-485?
A8. USCIS encourages adjustment of status applicants to submit Form I-693, Report of Medical Examination and Vaccination Record, with their Form I-485, Application to Register Permanent Residence or Adjust Status. Doing so will help limit the need for USCIS to send Requests for Evidence, reduce processing times, and aid USCIS as it works with DOS to use all available visas.
Q9. If I did not file a Form I-693 with my pending Form I-485, should I send one in now or wait for USCIS to request it, and why?
A9. Noncitizens with pending adjustment of status applications should not send an unsolicited Form I-693 to us. Given the rapid movement of files between directorates and offices as we strive to optimize resources across the agency, it would be difficult to match an unsolicited Form I-693 with the related adjustment of status applications in a timely and efficient manner. This could delay the adjudication of adjustment of status applications while Forms I-693 are matched up to adjustment applications. We are proactively identifying employment-based adjustment of status applications with available visas that lack a valid Form I-693 and contacting applicants directly to request that form.
If your underlying petition is approved and a visa is available to you, but you know that your previously filed Form I-485 does not have a valid Form I-693, it will help USCIS use the available visas and adjudicate your application if you visit a civil surgeon and have a valid Form I-693 on hand when we send the request to you. The “60-day rule,” which has been temporarily waived, does not apply to Forms I-693 signed by the civil surgeon after you have filed Form I-485.
Q10. My immigrant visa petition has been approved and I have a pending adjustment of status application. What happens next?
A10. In FY 2023, USCIS intends to transfer adjustment of status applications in the first three employment-based preference categories from the Texas Service Center (TSC) and Nebraska Service Center (NSC) to the National Benefits Center (NBC) after the approval of the petition. The Field Operations Directorate will adjudicate the adjustment of status applications.
Q11. Why does the data on the USCIS website show such lengthy processing times for employment-based Form I-485s at the Texas Service Center and the Nebraska Service Center?
A11. We understand that it can be disconcerting when the processing times on our website, especially at the Texas Service Center and Nebraska Service Center, are significantly longer than the agency-wide processing times. However, this is the expected result whenever USCIS transitions a workload from one operational component to another. The few applications that remain at the TSC and NSC are those that have already been pending for some time where the centers are completing the adjudication. As the service centers adjudicate the few remaining old applications the reported processing times for those centers will increase.
Q12. How does the transfer of underlying basis request process work?
A12. We have created a centralized location for the receipt of transfer of underlying basis requests between the employment-based preference categories that are accompanied by a Form I-485 Supplement J. You may submit your written request and completed Supplement J to:
Attn: I-485 Supp J
U.S. Department of Homeland Security
USCIS Western Forms Center
10 Application Way
Montclair, CA 91763-1350
You should only send transfer requests accompanied by a Supplement J to this address, and you should not send other forms, documents, or evidence to this address.
Employment-based transfer requests that are not accompanied by a Supplement J should be submitted in writing to the USCIS office with jurisdiction over your pending I-485 application.
If you have already submitted a transfer request to a USCIS office, you should not submit a new request. All requests to transfer the underlying basis already received or that will be received at a USCIS office will be processed as usual by the USCIS office with jurisdiction over your pending Form I-485.
For transfer requests accompanied by Supplement J submitted to this address at the Western Forms Center, we scan the documents, upload the Supplement J information into our systems (generating a receipt notice), and notify the office or service center that currently holds the related adjustment of status application that the scanned request is available in our electronic systems.
Q13. How does a transfer of underlying basis request affect the calculation of a child's age under the Child Status Protection Act (CSPA)?
A13. As stated in Volume 7, Part A, Chapter 7 of the USCIS Policy Manual, “[i]f an applicant has multiple approved petitions, the applicant's CSPA age is calculated using the petition underlying the adjustment of status application.” When we approve a request to transfer the underlying basis of the pending adjustment of status application, we calculate the CSPA age using the approved petition that forms the new basis of the adjustment application. If we transfer an applicant's underlying basis, then we calculate an eligible applicant's CSPA age using the applicant's age at the time the immigrant visa becomes available in the new category minus the time the immigrant petition that forms the new basis of the adjustment of status application was pending.
Q14. If the immigrant visa petition underlying my pending adjustment of status application has not been adjudicated, will this prevent me from transferring the basis to a different petition?
A14. If you have a pending petition, that does not prevent us from granting a request to transfer the underlying basis of your pending Form I-485 to a different Form I-140.
Q15. Why must applicants request to transfer the underlying basis of their pending Form I-485? Why does USCIS not review its records and make the decision for the applicants?
A15. The decision to grant a transfer request is made in the discretion of USCIS. If we grant the transfer request, we will adjudicate the Form I-485 application based on the petition to which the Form I-485 was transferred. If we do not grant the transfer request, we will adjudicate the Form I-485 application based on the petition associated with the Form I-485 application prior to the transfer request.
We do not presume to know whether an adjustment of status applicant would like to transfer their pending Form I-485 application from the petition on which it is currently based to a different petition. We require transfer requests to be in writing from the applicant to ensure that the record accurately reflects the basis on which the applicant requests us to adjudicate the adjustment of status application.
To highlight the importance of applicants making this decision themselves and communicating it to us, here is an example. Consider a noncitizen with a pending Form I-485 who does not have an available visa based on the underlying petition. They have an older approved petition in a different preference category where a visa is available to them. However, the petition was filed over 10 years ago, and the noncitizen no longer has a relationship with the potential employer, or the employer may no longer exist or no longer be willing to employ the noncitizen. As a result, the noncitizen could not adjust status based on that petition.
Q16. Why does USCIS not allow noncitizens to apply for adjustment of status based on the Dates for Filing chart every month of the year?
A16. When we determine that there are immigrant visas available for the filing of additional adjustment of status applications, noncitizens must use the Dates for Filing chart to determine when to file an adjustment of status application with USCIS. Otherwise, use the Final Action Dates chart to determine when to file an adjustment of status application with us. We make this determination monthly based on how many visa numbers remain available for the year, USCIS and DOS visa-available inventory, and operational considerations.
Q17. When does the special exception to the per-country levels for the employment-based categories apply?
A17. Under INA 202(a)(5)(A), if the total number of visas available in one of the employment-based categories for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available in that category will be issued without regard to the per-country numerical limitation. This can happen as early as the first day of a fiscal year, depending on the relevant data.
Q18. When USCIS adjudicates a principal applicant's adjustment of status application, does USCIS also adjudicate the adjustment of status applications of the dependent family members? What if dependent family members are not approved before priority dates move back?
A18. USCIS makes every effort to adjudicate the principal and derivative family members at the same time, but this is not always possible. If we deem approvable a Form I-485 of a derivative family member and a visa number is not available, we will request the visa number from DOS, but the case will remain pending until a visa number is available, DOS allocates it, and we complete the adjudication.
Q19. What happens when an EB-3 I-140 downgraded petition is pending and attached to a still-pending Form I-485? Is it true that the EB-3 I-140 does not have to be approved to allow a transfer of underlying basis of the Form I-485 to an approved EB-2 I-140 where the EB-2 priority date is current under the Final Action Dates?
A19. A pending EB-3 petition in this scenario does not prevent USCIS from granting the applicant's request to transfer the underlying basis of their pending Form I-485 to a separate, approved Form I-140.
We regularly update our blog section to acquaint the community with to latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.