Uncertainty for Employment-Based Green Card Applicants at the End of the Government’s Fiscal Year

As the end of the government’s fiscal year approaches on September 30, 2022, many foreign nationals with pending employment-based green cards are left with uncertainty as to when their green card applications may get adjudicated.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process, or if already pending, when the final step can be adjudicated by the government.

The release of the October 2022 Visa Bulletin shows significant retrogression in the employment-based second preference (EB-2) category for individuals born in India. The October 2022 Visa Bulletin shows that EB-2 India Final Action Dates will retrogress by more than two years, from December 1, 2014 to April 1, 2012.

Many Indian nationals have been waiting for over 10 years for their employment-based green cards in the EB-2 Category. Unfortunately, despite there still being 2 weeks left in this fiscal year, USCIS has confirmed that as of September 6, 2022, there were “no visas remaining for applicants from any country of chargeability” in the EB-1 or EB-2 categories. That means, USCIS will not be issuing any more green card approvals for EB-2 categories for the remainder of the fiscal year (until September 30, 2022) as it has exhausted the annual limit for that category worldwide.  For cases that have not been adjudicated by now, they will continue to be held by USCIS until the priority date is current again.

There is no way to predict what the Visa Bulletin dates for EB-2 or EB-3 India will look like over the course of the new fiscal year. USCIS has indicated that it anticipates having additional employment-based visa numbers available again for FY 2023, but not to the level they were for FY 2021 or FY 2022.  The demand for Indian nationals in the EB-2 and EB-3 categories is far more significant than available numbers. During each fiscal year, the annual 7% per-country-limit on how many green cards can be issued for nationals from each country is reset. However, this 7% limit can be exceeded in the following scenarios:

• If there are unused family-based numbers that were not used in a fiscal year, then those unused family-based visas are added to the annual limit on employment-based visas for the following fiscal year.
• If a particular employment-based category’s total numbers are not being used, then those can further be added to the most backlogged employment category, without regard to any normal annual limits.

In the meantime, while their green card applications remain pending, these applicants are able to continue to extend their Employment Authorization (EAD) and Advance Parole (AP) travel authorizations. We also recommend that applicants continue to extend their underlying status, if possible, while they wait for their green cards.

We understand that the news of the EB-2 numbers running out as of September 6, 2022 and the upcoming 2-year retrogression in October is incredibly frustrating and devastating for Indian nationals who have waited over a decade to get their green card. This is ultimately a result of the failure of Congress to increase the number of employment-based green cards per year or to eliminate the per-country limits plaguing Indian nationals. Even a lawsuit to compel USCIS to adjudicate a pending I-485 could not overcome this statutory challenge.

If you have a pending I-485 adjustment of status green card application with USCIS and have not received a decision yet on your case, we encourage you to reach out to the attorneys at MMH to discuss any alternative options you may have and to continue to extend your nonimmigrant status and EAD and AP, to the extent possible.