Retrogression and New Filing Dates in January 2023 Visa Bulletin

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Retrogression and New Filing Dates in January 2023 Visa Bulletin

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After massive swings in the dates by which immigrants may apply for permanent residency over the last two years, we are seeing massive retrogression in the eligibility dates in new categories and, for the first time in quite a while, for worldwide petitions in the “EB-2” category.

As background, and from a very high level, there is a yearly maximum of 140,000 “immigrant visas,” for employment-based permanent resident applicants.  These 140,000 visas are divided into five broad categories, including the “EB-1A” category for individuals of extraordinary ability, to the more common EB-2 and EB-3 categories for individuals sponsored by U.S. employers, down to the EB-5 investor.  These visas are further divided by country, so that a maximum of 7% of available visas can be allocated to a given country per year.  Simply put: there are not enough green cards to go around, and the problem is only worse for individuals from certain countries – India and China in particular.

Because of this, there are backlogs in various categories for individuals who have approved applications for their immigrant visas, but who are still waiting for their place in line to become current.  For example, take an individual who had been sponsored for a green card by their employer in the “EB-2” category as an individual with an advanced degree, such as a Ph.D.  In January 2022, for most countries, they would immediately be able to apply for their permanent residency.  If they were from India, however, they would have had to have an application pending from July 8, 2012 for that application process to proceed.

Fast forward to a year later.  More visas have been released, and a historic number of green cards were issued last fiscal year.  Nonetheless, for that same individual, if they were from most countries, they would have to have an application pending from November 1, 2022 – no green card is immediately available.  For folks from India, the processing dates have retrogressed, meaning now that individual would have to have an application pending from October 8, 2011.  Add to this, other categories for India and China are also now backlogged for the first time since early 2021.  Individuals in the EB-1 category would have to have an application pending from June 1, 2022.

There are major policy issues that come with these backlogged dates.  The EB-2 category includes applications from individuals whose work is considered to be in the national interest.  The EB-1 category encompasses Olympic athletes, Nobel Laureates, and outstanding researchers.  Given processing times, this retrogression will not affect most individuals from most countries being sponsored by their employers.  What it will do, however, is restrict the ability of the United States to welcome extraordinary individuals into the United States, as well as push those waiting in line due to their country of origin into a longer legal limbo.

The visa bulletin, which lays out the dates by which immigrant visas are available, is an important resource for employers, attorneys, and intending immigrants to watch.   Whether you are trying to hire an individual to work at your business or are intending to immigrate yourself, familiarizing yourself with when a green card application may be made is vitally important.

The bulletin and its methodology can be cryptic at best, and the employment-based immigration process can be daunting, but our attorneys here at Joseph & Hall would be happy to help you plot out your journey to reach your immigration or hiring goals.  If you have questions or would like assistance, please contact our office.

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