October 2021 Visa Bulletin: No Forward Movement for China and India
The Department of State (DOS) Visa Office has released the highly anticipated October 2021 Visa Bulletin. Unfortunately, there will be no advancement in the Final Action Dates chart across the board for the start of the new fiscal year, with the EB-2 and EB-3 categories for China and India remaining at the same Final Action Dates released in the September 2021 Visa Bulletin. The lack of advancement in the Final Action Dates chart for these countries is not entirely unexpected, despite the anticipated high number of available visa numbers for the employment-based categories for Fiscal Year (FY) 2022. In August 2021, the DOS stated that employment-based visa numbers may reach 290,000 for FY 2022 due to the family-based spillover from last fiscal year as a result of the impact of the COVID-19 pandemic on immigrant visa processing at the U.S. Embassies. However, as predicted in our previous alert, the EB-2 and EB-3 categories for India and China may not have any significant forward movement at the start of the FY2022 because of the very large number of employment-based adjustment of status (green card) applications filed through October - December 2020; many of which remain pending before the U.S. Immigration and Citizenship Services (USCIS).
Anticipated Visa Availability in Upcoming Months
The DOS indicates in the bulletin that a cut-off date EB-3 Worldwide may be imposed as early as November 2021. In addition, the Final Action Dates for EB-3 category for China and India are expected to retrogress by November, which is likely a result of the high number of adjustment of status applications filed with EB-3 downgrades. Despite the unwelcomed news for the EB-3 category, the DOS predicts that EB-2 Worldwide will continue to remain current and that the EB-2 category for China and India will see forward movement up to several months. The EB-1 category is expected to remain current for the coming months.
The USCIS has confirmed that the Dates for Filing Chart must be used for the month of October.
Individuals who have priority dates that are older than the cut-off dates in the Dates for Filing Chart may file an adjustment of status application with the USCIS.
What This Means for Our Clients
We will notify our clients in the coming days of all employees who are eligible to file I-485 adjustment of status applications in the month of October. Over the next several months, many employees who currently have pending applications, may be eligible for final approval of their green cards, and employees who have been waiting for eligibility, may be able to file for their green cards. We will closely monitor pending and potentially eligible cases and coordinate with our clients and their employees accordingly.
Application Filing Dates (when an immigrant visa or adjustment of status application can be filed). Foreign nationals with priority dates earlier than the dates for filing visa applications indicated in the Visa Bulletin chart below, or where noted as “C” for “current,” may file an immigrant visa application through the Department of State consular service (“consular processing”) during the applicable month. Such persons may also apply for adjustment of status (“I-485 application”) through USCIS in the United States, provided that USCIS has indicated on its website that the cut-off dates indicated on the Application Filing Date chart may be used for adjustment filings during the applicable month. If USCIS does not indicate that the Application Filing Date chart may be used for adjustment filings, the adjustment application must be filed based on the Final Action Date chart (see below).
Application Final Action Dates (when an immigrant visa or adjustment of status application can be approved). Foreign nationals with priority dates earlier than the final action dates indicated in the Visa Bulletin chart below, or where noted as “C” for “current,” may be approved for an adjustment of status application (I-485) or immigrant visa during the applicable month. The Final Action Dates Chart also determines when an adjustment of status application may be filed, unless USCIS indicates that the earlier Application Filing cut-off dates may be used to determine when the adjustment may be filed for that particular month.
Application Final Action Dates for October 2021*:
Dates for Filing Visa Applications for October 2021*:
* We have omitted the information for El Salvador, Guatemala, and Honduras, as well as the 3rd "Other Workers," 4th, and 5th Preference Categories from these charts. To view the full bulletin, please visit the Department of State Visa Bulletin page.
How Immigrant Visa Quotas and the Visa Bulletin Work
The Immigration and Nationality Act limits the number of employment-based immigrant visas that may be issued each year to a worldwide level of 140,000. The Act also allocates this limited number of visas based on preference category and country of birth, such that each country is subject to an individual per-country quota, in addition to the overall worldwide quota. For foreign nationals who are being sponsored by their employers for a green card, the most common preference categories are: the employment-based first preference category (EB-1), which is reserved for aliens of extraordinary ability, outstanding researchers, and multinational managers; the employment-based second preference category (EB-2), which is reserved for advanced degree holders [1] and aliens of exceptional ability; and the employment-based third preference category (EB-3) which is designated for professionals, skilled workers and “other” workers.
Due to the limited number of immigrant visas, combined with the very high demand for these visas, most foreign nationals are subject to significant backlogs that delay the process of obtaining permanent residency. These backlogs are expressed as “final action cut-off dates” in the Department of State’s monthly Visa Bulletin. The foreign national’s place in line for purposes of the quota backlogs is referred to as the “priority date.” In the employment-based context, the priority date is established on the date that the employer starts the green card process by filing a PERM labor certification application or immigrant petition on the foreign national’s behalf. Before the foreign national can be approved for a green card, the sponsored foreign national’s priority date must fall on a date that is earlier in time than the applicable final action cut-off date listed in the Bulletin.
As of October 2015, each month’s Visa Bulletin also includes a separate chart providing “filing cut-off dates,” which indicate when the last step of the permanent residency process may be filed. This two-tier Visa Bulletin, with separate cut-off dates for approval and final action, is designed to help the Department of State more accurately predict demand of green cards, and better regulate the number of green cards approved each year. It is believed that the two-tier Visa Bulletin system will reduce fluctuation in cut-off dates in the Bulletin each month, and reduce the number of "lost" immigrant visa numbers each year.
Note that where a preference category is not affected by a quota backlog for a particular country of birth, the cut-off date is indicated as “current” (“C”) in the Visa Bulletin. This means that the foreign national may apply for the final step of the green card process irrespective of his/her priority date.
[1] The EB-2 category is reserved for foreign nationals who possess either an advanced degree (master’s or higher), or equivalent, or qualify as an “Alien of Exceptional Ability.” The equivalent of an advanced degree is defined as a bachelor’s degree followed by five years of progressively responsible experience in the field. Note that where a bachelor’s degree and five years of experience are used to qualify for EB-2, the bachelor’s degree must normally be a 4-year “single source” degree, and must also be deemed equivalent to a U.S. bachelor’s degree. Also note that to qualify for EB-2 as an advanced degree holder, the position for which the foreign national is being sponsored must actually require an advanced degree or equivalent.