WILL THERE BE AN EB-3 RETROGRESSION IN NOVEMBER, AND IF SO WHY AND WHAT DOES IT MEAN FOR THE FUTURE?

Last week’s October 2021 Visa Bulletin was hotly anticipated.  Over the summer it became apparent that the 140,000 employment based visa quota would at least double in fiscal year 2022, which starts October 1, 2021.  The expectation was that IV dates would leap forward.

And yet when the October 2021 was released not only did the dates stay the same, but the VB included a note at the end,

Employment Third:

Worldwide: A final action date could be imposed as early as November

China: A retrogression of this date could occur as early as November

India: A retrogression of this date could occur as early as November

Mexico: A final action date could be imposed as early as November

Philippines: A final action date could be imposed as early as November

With that we now expect retrogression in all EB categories starting in November. Charlie Oppenheim, who runs creates each month’s Visa Bulletin for the Department of State, said as much in his monthly You Tube video broadcast. 

There appears to be two reasons for this change in expectation:

-There were many more I-485, Adjustments of Status filed in FY 2020 than anyone in the DOS expected.  Likewise, the USCIS is approving more I-485s.  This is a disappointing answer because most of these I-485s were filed in October and November 2020.  This insight should have been apparent much earlier.

-The Department of State knows that their overseas consulates and embassies have the ability to dramatically increase processing of consular processed visas.  This is good news for overseas for consular processed immigrant visas, like nurses, because it implies that the DOS is holding back immigrant visas instead of allowing the entire quota to be used by AOS cases.  On the other hand, it is surely disappointing if you are in the US awaiting a visa. 

MU Law’s interpretation is that if the overseas consulates and embassies do not dramatically increase their visa issuance, that these visas should be put back into the AOS queue later in FY 2022.

FORTHCOMING BUDGET RECONCILIATION BILL MAY DRAMITICALLY INCREASE GREEN CARDS

A potential amendment to the forthcoming budget bill may dramatically raise the employment-based visa quota, if Senate Democrats can rewrite it in a way to appease the Senate parliamentarian.  Over the weekend, Senate Democrats attempted to pass a positive immigration bill, but the Senate parliamentarian said that it was inappropriate to include wide-ranging immigration language in a budget bill.  Senate Democrats are said to be working on a back-up plan.

A budget bill is expected to pass before October 1, 2021 to prevent a federal government shut down.  Between now and then, the budget negotiations are expected to consume Washington.  As part of the process, House and Senate committees propose and suggest language to place into the bill. 

The House Judiciary Committee last week approved immigration language for the budget bill, which included several positive immigration measures.  Notably, the HJC language included a “recapture” of immigrant visas that were authorized but unused by DHS from 1992-2021.  A 2010 report by DHS found that between 1992-2010 about a half million employment based visas were authorized by Congress but unused simply because of bureaucratic delays and inefficiencies.  Recapturing these visas would dramatically clear up most retrogressed green cards and would be an amazing piece of legislation for foreign nationals, US employers, and the US economy as a whole.

The language included a few other positive items:

-A legalization path for a large number of undocumented people in the US

-A similar recaptured visas for family-based visas

-A liberalized Adjustment of Status process for those with priority dates that are 2 years old

-An increased budget allocation for USCIS

OCTOBER 2021 VISA BULLETIN: ANALYSIS FOR FY 2022

The Department of State has just issued October 2021 Visa Bulletin.  This is the first Visa Bulletin of Fiscal Year 2022. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	1-Jul-18	1-Sep-11	C
3rd	C	8-Jan-19	1-Jan-14	C

Table B: Dates of Filing

The USCIS will be using the Table B chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

The DOS’ comments at the end of this Visa Bulletin confounds.  They predict that the DOS will enact priority date cut-offs (retrogression) with the November Visa Bulletin.  Most prior DOS predictions did not call for a retrogression.

It remains to be seen if this prediction holds true, and if it does, how long it lasts.  It seems certain that there are many numbers available.  This could be the DOS trying to slow inquiries by being able to point to the retrogression.