Predictions for Employment-Based Visa Numbers for FY2022

Due to the continued impact of the COVID-19 pandemic on the processing of immigrant visas at overseas consular posts, it is expected that the annual limit in available visa numbers for the employment-based visa categories will increase significantly for Fiscal Year (FY) 2022, which starts on October 1, 2021. According to Charlie Oppenheim, the Department of State’s (DOS) Chief of the Immigrant Visa Control and Reporting Division (often referred to as the “Visa Office”), the available employment-based visa numbers may reach 290,000 for FY2022, surpassing FY2021’s unprecedented limit of approximately 261,500.

Under normal circumstances, the number of employment-based immigrant visas that may be issued is limited to 140,000 per fiscal year. The anticipated increase is based on the ‘spillover’ of unused family-based visa numbers from FY2021 – the Immigration Law allows for unused family-based immigrant visas in one fiscal year, to be allocated to the employment-based categories the next year. At the time of the August 2021 Visa Bulletin release, Mr. Oppenheim estimated that there will be 150,000 unused family-based visa numbers, thus increasing the overall number to almost 300,000. This number results from the lack of family-based immigrant visa processing at U.S. Embassies and consular posts abroad, due to the pandemic, which typically accounts for 90% usage of available family-based visa numbers.

It is also estimated that there will be over 100,000 unused employment-based immigrant visas from this fiscal year. However, unlike family-based visas, the employment-based categories cannot be ‘rolled over’ into FY2022’s allotment. Unless Congress acts to change this law, or pending litigation is successful, these numbers will be lost for good.

While the surplus of visa numbers is good news for persons born in India and China, who are subject to lengthy per-country backlogs in the employment-based immigrant visa categories, it is unclear at this point whether people from these countries will see significant advancement in filing cut-off dates for FY2022. The filing cut-off date is the date on which an applicant living in the United States may apply for the adjustment of status, the final stage of their green card process, based on the person’s country of birth and their specific employment-based preference category. Due to the family-based spillover from last year, the Visa Office moved the employment-based cut-off dates forward to meet the additional supply at the beginning of this fiscal year. This resulted in a very large number of employment-based adjustment applications filed last fall. However, because the U.S. Citizenship & Immigration Services (USCIS) is expected to approve only a portion of these new applications before the fiscal year ends, many eligible applicants for FY2022 will already have an adjustment on file at the start of the fiscal year, thereby preventing forward movement in the filing cut-off dates for new applicants. The Visa Office has predicted that the new filing cut-off date for Indian-born applicants in the employment-based third preference (EB-3), for example, will only move to January 1, 2014, which is a year earlier than it was at the beginning of FY2021.

We will continue to monitor the DOS’s Visa Bulletin and will provide updates as information becomes available.

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