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The Visa Bulletin: Unraveling the Mystery – July 2021 | Harris Beach PLLC – JDSupra – JD Supra

The Visa Bulletin is a report published by the U.S. Department of State each month, and is essentially the road map through a foreign national’s green card journey. The primary purpose of this bulletin is to provide an updated waiting list (also known as “Priority Date”) for immigrant visa applicants who are subject to the quota system. Because the number of intending immigrants generally exceeds the number of available immigrant visas, there is virtually always a wait for family preference categories. In this situation, the Department of State issues immigrant visas (green cards) on a first-come, first-serve basis for each category.
Congress sets annual limits to the number of green cards that can be issued. Today, there are 366,000 available annually, with a specific quota for each category. There are two main types of Green Cards: family-based green cards (226,000 available annually) and employment-based green cards (140,000 available annually). Congress also limits the number of available green cards based on country of origin. Under this annual “country cap,” no single country of origin can account for more than 7% of the green cards in either category, which means that applicants from countries with high numbers of applications such as China, India, Mexico or the Philippines, may face a substantial wait. Every year the number of total applications for U.S. immigration exceeds the limits as a total and by category, which creates a large backlog of applications. This backlog leads to wait times for new applicants, which are published in the monthly Visa Bulletin.
For Family-based green cards, our immigration system is categorized by those that are subject to a waiting list, such as those seeking admission as a relative of a U.S. Permanent Resident, and those who do not require placement on a waiting list, such as the spouse of a U.S. citizen. For those visas that require a waiting list, a certain number of visas become available on annual basis. For example, there are approximately 23,000 visas available for married sons and daughters of U.S. citizens. If the number of applicants in a year exceeds the available visa numbers, those applicants are placed in a queue and are given a priority date, which establishes their place in the queue and allows them to estimate when an applicant would get a visa based on the number of previous applicants in the queue.
The Priority Date corresponds to the date when a principal green card applicant first indicates his or her intent of permanent immigration to the U.S government. For family-based petitions, the priority date is the date an immigrant visa petition is received by U.S. Citizenship and Immigration Services (USCIS). This is accomplished through the filing of Form I-130, Petition for Alien Relative. For employment-based immigrant visa beneficiaries, the priority date is the date that an immigrant visa petition, via Form I-140, is received by USCIS under categories where a labor certification is not required. For labor certification-based petitions, the priority date corresponds to the date that the U.S. Department of Labor receives Form ETA-9089. In all cases, the priority dates are not established until USCIS approves the immigrant visa petitions (I-130 or I-140). The priority date establishes one’s place in the queue for a family-sponsored or employment-based green card.
The U.S. Department of State Visa Control and Reporting Division is responsible for determining the movement of immigrant visa cut-off dates each month and for releasing the monthly Visa Bulletin.
The Visa Bulletin follows a standard format to sort the priority dates of the applicants and it is broken down to the following visa categories:
For the preference visa categories, tables for family-sponsored and employment-based visa number availability are published in each Visa Bulletin release. In the tables, "C" means current, i.e., visa numbers are available for all qualified applicants; and "U" means unavailable, i.e., no visa numbers are available. If a cut-off date is listed in the table, visa numbers are available only for applicants whose priority date is earlier than the cut-off date listed in the tables.
In September 2015, USCIS, in coordination with the Department of State (DOS), revised the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status applications. See: https://www.uscis.gov/archive/uscis-announces-revised-procedures-for-determining-visa-availability-for-applicants-waiting-to-file
According to the agencies, the revised process was implemented to “better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.” Further, the revised process was intended to enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin, thereby ensuring that the maximum number of immigrant visas are issued annually as intended by Congress, and to minimize month-to-month fluctuations in Visa Bulletin final action dates.
Two charts per visa preference category are posted in the Visa Bulletin:
Each month, in coordination with DOS, USCIS monitors visa numbers and posts the relevant DOS Visa Bulletin chart at https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin. Applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status.
If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, they will state on this page that applicants may use the Dates for Filing chart. Otherwise, USCIS will indicate on this page that applicants must use the Final Action Dates chart to determine when they may file their adjustment of status application. However, if a particular immigrant visa category is “current” on the Final Action Dates chart or the cutoff date on the Final Action Dates chart is later than the date on the Dates for Filing chart, applicants in that immigrant visa category may file using the Final Action Dates chart during that month.
To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:
Family-based Green Card (F): Capped at 226,000 visas per year and contingent on Form I-130
Preference categories:
Employment-based (EB): Capped at 140,000 visas per year and contingent on Form I-140
Preference categories:
Under the July 2021 Visa Bulletin, there are significant advancements in priority dates for India and China in the employment-based final action dates. We expect EB-2 China and India to continue advancing through the remainder of the year. Final Action cutoff dates for EB-2 China moved forward by seven months to December 1, 2017.
The EB-1 category is current for all chargeability areas (China, India, Mexico, Philippines, Vietnam, Central America, and the rest of the world). We expect to see China and India EB-1 remain current throughout the rest of the year.
Among other notable changes, EB-2 India moved forward by six months to June 1, 2011; EB-3 China moved forward by four months to January 1, 2019; and EB-3 India advances significantly by one year and two months to January 1, 2013. The same is true for EB-3 (other) for India with advancement by over a year.
These advancements come on the heels of a prior significant advancement under the October 2020 bulletin, which allowed many employment-based beneficiaries to file petitions to “downgrade” their previously filed/approved I-140 petitions from EB-2 to EB-3 in order to take advantage of Adjustment of Status filings. Many of these downgraded I-140 petitions are still pending with USCIS.
There are several questions that arise under the July Visa Bulletin, which have now made many of these applicants “current” under the Final Action Date chart:
You could either file an I-140 petition to “downgrade” to EB-3 before the priority date is actually current, or wait until the priority date becomes current under EB-3 and concurrently file your I-485 application with the downgrade petition at that time.
The priority date is not officially locked in until the I-140 petition is approved, so there is a benefit to the I-140 petition being approved. However, there is no guarantee that USCIS will assign an immigrant number and/or approve the I-485 application in time to take advantage of the advancements in priority dates.
No. USCIS will not accept an initial premium processing request with your I-140 downgrade petition if it is submitted with an expired labor certification. Once the I-140 filing receipt is issued, however, you may be able to upgrade to premium processing.
We do not recommend proactively submitting the medical exam reports prior to receiving a Request for Evidence from USCIS, as they rarely link them to the file. If the medicals were obtained after the I-485 was filed, they will remain valid for 2 years from the date on which the Civil Surgeon signed and dated the form.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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