• by Santhosh Rao

GLF has prepared the following draft referencing content in AILA8 (Doc. No. 22090931) dated October 26, 2022.

Here are some of the Employment – Based Adjustment of Status updates for Fiscal year 2023:

EMPLOYMENT BASED ANNUAL LIMIT FOR FY 2023

• FY2022 saw a total of 281,507 employment-based visas getting issued which was double the typical annual limit due to addition of unused family-based Visas from FY2021 to FY 2022. All Employment based Immigrant Visas were issued before the end of September 30, 2022 except 6,396 EB-5 visas which got carried over to FY 2023 by the congress. A total of 220,000 employment-based Adjustment of status applications were approved by the USCIS.
• Employment – Based (EB) Annual Limit for FY 2023 is predicted to be higher than FY 2023 and FY 2022. For FY 2023, Employment based annual limit is estimated at 197,000 with 57,000 unused family-based Immigration visas being carried forward from FY2022 to the EB limit for FY 2023. USCIS is aiming to issue as many available employment-based visas before September 30, 2023.
• Under INA 201(d)(2), the unused family-sponsored visa numbers from the previous fiscal year are added to the overall employment-based limit, and under INA 203(b), Congress divides the unused family-based immigration visas among the various employment-based visa categories EB (1-5) in such way that EB-1, EB-2, EB-3 each receive 28.6% of the overall limit, and EB-4 and EB-5 receive 7.1% respectively.
• However, within each employment-based category the visas are still distributed with the per-country limits in effect, unless the exception to the per country limits of INA 202(a)(5) applies within that category.

ALLOCATION OF VISA NUMBERS

• A category can be “Current” in the Visa Bulletin, does not mean that there is little or no inventory of pending applications with USCIS and DOS for that category/country. If there are sufficient remaining visa numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered Current. For example, if EB 2 has 49,000 visas available for applicants from countries other than India and China, and there are 48,000 pending applications, then the category can be “Current.”
• If visas are “not required” in a particular employment-based category, 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 up/fall down” provisions. Under INA 203(b), visas not required in EB-4 and unreserved visas not required in EB-5 are made available in EB1. 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.
• When there are immigrant visas available for the filing of additional adjustment of status applications, noncitizens can use the Dates for Filing chart to determine when to file an adjustment of status application with USCIS. Otherwise, they can use the Final Action Dates chart to determine when to file an adjustment of status application with the USCIS. This determination is based on how many visa numbers remain available for the year, USCIS and DOS visa available inventory, and operational considerations.
• 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.
• A visa number is subtracted from the annual limit when the Department of State issues an immigrant visa to a noncitizen through consular processing or when a noncitizen acquires lawful permanent resident status upon approval of their application for adjustment of status, either with USCIS or the Executive Office for Immigration Review (EOIR) of the Department of Justice. A visa number is not subtracted from the annual limit based on any other preliminary step in the adjudication process. If USCIS has approved an adjustment of status application for a principal applicant, but the applications of dependent family members remain pending, immigrant visa numbers have not yet been subtracted from the annual limit for the dependent family members.
• In certain situations, an applicant may benefit from the charging of their visa number to their spouses or parent’s country of birth rather than their own. This is known as cross chargeability and is found in INA 202(b).
• When USCIS uses the phrase “visa available” in reference to a pending adjustment of status application, it means that the applicant in the given family-sponsored or employment-based preference category has a priority date that is earlier than the date shown in the Final Action Dates chart of the Visa Bulletin for their country of chargeability and immigrant visa category (or the Visa Bulletin shows that the category is current, that is, visa numbers are authorized for issuance to all qualified applicants).
• USCIS determines an immigrant visa in the family-sponsored and employment-based preference categories “is considered available for accepting and processing” the adjustment of status application, if the applicant has a priority date, which is earlier than the date shown in the Visa Bulletin for their country and category, or the Visa Bulletin shows that the category is current

RETROGRESSION

• DOS estimates anticipated number of visas which will be issued during any quarter of any fiscal year under Employment-based, Family-based and Diversity categories). USCIS may not predict the ultimate number of adjustment of status or an immigrant visa petition or the approvals.
• Demand for visas for Adjustment of Status depends on the response to the Visa Bulletin and to the DOS welcome letter issued by NVC. Likewise, the visa availability for a particular visa category or country changes throughout the year.
• While setting the first Visa Bulletin of the fiscal year each October, DOS makes reasonable estimation of the availability of employment-based immigrant visas in each visa category. After that with collaboration with USCIS, it reviews the pending list of adjustment of status and immigrant visa applications, oversee new applications  and set up the Final Action Dates, respectively.
• By setting extremely strict and detailed annual limits and rules for the distribution for visas, Congress creates a balance between the supply and demand. DOS has to regularly update and adjust the number of non-citizens who can be applying for visas and accordingly set the Final Action Dates in order to create sufficient demand for such types of visas.
• When the demand is higher than the usual estimation or the availability is lower than the standard limits, this may lead to retrogression of Final Action Dates, which supports to maintain the balance and provide service within a particular queue.
• Retrogression does affect the visa slots opening in consular processing and interview dates but does not affect the biometrics collected by USCIS during the consular processing similarly the issuance of RFE or Notice of Intent or Deny doesn’t depend on retrogression.

FACTORS AFFECTING THE FINAL ACTION DATES

• Percentage of applications being rejected, pending adjustment of status applications throughout various visa categories, number of dependents linked with each principal applicant, number of applications in adjudication process and the approval timings, applicants transferring between various EB categories to suit their needs.
• When the demand for a particular visa category (or a country within a category) exceeds the given supply, then the country/category is considered to be oversubscribed and accordingly DOS issues a cut-off date in the Final Actions Date chart to check and keep it under quarterly and annual limits.
• Priority date usually is the date DOL accepts the Labor certification application for processing. Similarly for any other employment-based visas, the priority date generally is the date USCIS accepts the underlying petition for processing. Retrogression doesn’t affect the so-called priority date, it’s just that there is no visa available right now to non-citizens who wants them, even they have completed the adjustment of status application.
• While I-485 application for adjustment of status is pending , applicant can take advantage of certain benefits namely:
  • Employment Authorisation: if granted the applicant will not be tied to a particular employer , position or job classifications and can avail various job opportunities.
  • Advance Parole: if granted applicant can travel outside of US and safely return without losing status.
  • The applicant can request to port the underlying job opportunity upon which his\her adjustment is based and go with a new employer or new job if the I-485 Adjustment of Status application is pending for more than 180 days with USCIS.

FAMILY MEMBERS

• In Employment based preference category, Derivative child’s age under the Child Status Protection Act (CSPA) is the child’s biological age at the time of visa availability without considering the amount of time that the underlying petition was pending. But underlying condition being that the child should have acquired status as a Lawful Permanent Resident within one year of the date a visa is available.
• USCIS takes every effort to adjudicate the principal and derivative family members at the same time, but this is not always possible. To approve a Form 1-485, if a derivative family member and a visa number is not available based on the Final Action Dates chart in the Visa Bulletin at the time they make that determination, the application will remain pending until a visa number is available. Once the Visa is available, DOS allocates a visa and USCIS completes the adjudication.
• In a situation where both spouses have one or more petitions that could serve as the underlying basis for their adjustment of status applications, they can request to transfer the underlying basis from a petition filed on behalf of one spouse to a petition filed on behalf of the other if the new immigrant visa category allows for dependent spouses.

TRANSFER OF UNDERLYING BASIS

• To process the transfer of underlying basis request between the employment-based preference category, applicant needs to submit a written request with Form I-485 Supplement J to the following address:
  • For USPS – USCIS Attn: Supp J, PO Box 660834, Dallas, TX 75266 -0834 and
  • For FedEx, UPS and DHL deliveries – USCIS Attn: Supp J, (Box 660834) 2501 S. State Hwy. 121 Business, Suite 400, Lewisville, TX 75067-8003
• Upon receiving the transfer requests, USCIS will upload the same into their systems generating a receipt notice and then reviews the request deciding whether to grant or deny the request.
• For calculating Child’s age under CSPA, the petition underlying the adjustment of status application is considered. On transferring the underlying basis, the child’s CSPA is calculated using the applicants age at the time the visa becomes available in the new category minus the time immigrant petition that forms the new basis of the adjustment of status applications was pending
• The pending petition does not bar USCIS from granting a request to transfer the underlying basis of pending I-485 to a different Form I-140. Additionally, pending EB-3 I-140 does not bar USCIS from granting a request to transfer the underlying basis of pending I-485 to an approved Form I-140. However, USCIS will only adjudicate the adjustment of status application on the most recently granted transfer request.

FILING AND PROCESSING QUESTIONS

• Applicant are advised to submit a fresh I-693, Report of Medical Examination and Vaccination record with their Form I-485. USCIS will be contacting the applicants where there are no valid I-693. The applicants whose underlying petition is approved and but have previously not filed a valid I-693 needs to have a valid Form I-693 in hand and submit it when requested. However, a 60-day rule which has been temporarily waived does not apply to Forms I-693 signed by a civil surgeon after filing Form I-485.

SIGN UP FOR GLF NEWSLETTER
At GLF, we will continue to follow further developments in the above discussed and other matters, while we provide updates through our Newsletter as and when they become available. GLF receives numerous emails and phone calls every day seeking comments on various proposed bills and media reports that are often inaccurate. It is our job to separate fact from fiction and advice clients on important and relevant updates. The best way to receive accurate information is through GLF Newsletters.

We encourage you (and your employees) to sign up for GLF Newsletter. If you have not already signed up to receive our Newsletters, please do so by visiting www.gokarelaw.com and signing up under the Newsletter Tab. All we need is your name and email address which takes very little time to sign up. You can also review all of our earlier GLF Newsletters on our website.