When Immigration Matters

MAY VISA BULLETIN SHOWS HUGE BACKLOGS FOR EMPLOYMENT BASED GREEN CARDS

Posted by Karen-Lee Pollak on Apr 18, 2023 4:44:31 PM

Blog images (2)The Department of State has released the May Visa Bulletin and there are significant delays. These delays will primarily impact workers who have not filed adjustment of status applications. Employers sponsoring foreign nationals should be aware that some cut-off dates for filing immigrant visa applications in certain employment-based (EB) preference categories have recently “retrogressed” or moved backwards in time due to increased demand.

These delays are going to have a significant effect on when employees can file the final stage of their green card process. The hardest hit category is EB3-other workers, which are jobs requiring less than 2 years of experience. It could be 40 months before we can file the final stage of the Green Card.

If the worker is in the United States, we cannot file the adjustment of status application (FORM I485) until the visa bulletin becomes current again which means that if the employee is in the United States on a nonimmigrant visa that expires before their priority date (date for filing the adjustment of status) and such visa cannot be renewed or they have not already filed an adjustment of status application, the worker will have to leave the United States. We do not expect these dates to become current before the next Fiscal Year which begins on October 1, 2023. But we just do not know.

These delays will also increase delays in scheduling interviews at the Consulate if the worker is Consular Processing overseas and their Labor certification was filed after the cut-off date.

As a background, the Department of State publishes a monthly Visa Bulletin, which apprises foreign nationals of the time to file their immigrant visa application which is the Form 485 if they are in the USA or DS 260 if outside the United States. The date that a foreign national may submit their application depends on a combination of factors, including their country of birth; the Priority Date and EB preference category listed on the approved I140 Immigrant Petition for Alien Worker; and the cut-off date on the relevant Visa Bulletin chart.

What is the Priority Date for your Case?

  1. If you are filing a Labor Certification in the EB2 and EB3 categories, that is the date your Labor Certification was filed. It will also be listed on the I140 Receipt notice if the first stage of your green card has been filed.
  2. If you filed or are filing an EB2 National Interest Waiver, the priority date is the date USCIS received your I140 Petition and is listed on your I140 receipt and approval Notice.
  3. The EB3 category is divided into two categories on the visa bulletin: 
  • those with a job description that requires a bachelor’s degree and less than 5 years of experience or skilled workers who have 2 or more years of experience.
  • EB3 Other workers or unskilled workers are those workers with a job description requiring less than 2 years of experience.
    A visa becomes available, and the final stage of the green card can be filed when the foreign national’s Priority Date is earlier than the cut-off date indicated on the relevant Visa Bulletin chart for the foreign national’s preference category and country of birth.

    Here are the priority dates announced in the May Visa Bulletin for the pertinent categories.

Employment-
based

Priority Date

CHINA-
mainland 
born

INDIA

MEXICO

PHILIPPINES

2nd Date Labor certification filed or I140 filed if it is a National Interest Waiver

15FEB22

08JUN19

01JAN11

15FEB22

15FEB22

Third requiring 2 years’ experience or bachelor’s degree

01JUN22

01APR19

15JUN12

01JUN22

01JUN22

3rd Other Workers

Less than 2 years’ experience

01JAN20

15APR15

15JUN12

01JAN20

01JAN20

 Example 1 (EB2): Mr. Smith is from Germany. An employer is sponsoring him as an IT Developer or any job requiring at least bachelor’s degree and 5 years of experience or higher degree. He will not be able to file an adjustment of status application if his employer filed his labor certification after February 15, 2022. And based on the current visa bulletin will not be able to file the final stage of his green card for at least 14 months unless the visa bulletin becomes current. He will need to leave the USA when his nonimmigrant visa expires if it cannot be renewed, or he has not already filed an adjustment of status application. The wait time would be longer if Mr. Smith is from China or India.

Example 2 (EB2 National Interest Waiver): Mr. Massimo is from Italy. He filed his I-140 Application as an alien of extraordinary ability. If he filed his application after February 15, 2022. He will not be able to file an adjustment of status application if he filed his 140 after February 15, 2022. And based on the current visa bulletin will not be able to file the final stage of his green card for at least 14 months unless the visa bulletin becomes current. He will need to leave the USA when his nonimmigrant visa expires if it cannot be renewed, or he has not already filed an adjustment of status application. The wait time would be longer if he were from China or India.

Example 3 (EB3-skilled worker): Mr. Smuts is from South Africa. An employer is sponsoring him as a Farm Manager requiring 2 years of experience. He will not be able to file an adjustment of status application if his employer filed his labor certification after June 1, 2022. And based on the current visa bulletin will not be able to file the final stage of his green card for at least 10 months unless the visa bulletin becomes current. He will need to leave the USA when his nonimmigrant visa expires if it cannot be renewed, or he has not already filed an adjustment of status application. The wait time would be longer if he is from China or India. If he is here on an H2B or H2A Application, he will not be able to renew this visa if he filed an I-140 application before the H2A needed to be renewed as he has shown immigrant intent.

Example 4 (EB3-Professional worker): Mr. Silver is from Germany. His employer is sponsoring him as a Marketing Manager requiring a bachelor’s degree and 3 years of experience. He will not be able to file an adjustment of status application if his employer filed his labor certification after June 1, 2022. And based on the current visa bulletin will not be able to file the final stage of his green card for at least 10 months unless the visa bulletin becomes current. He will need to leave the USA when his nonimmigrant visa expires if it cannot be renewed, or he has not already filed an adjustment of status application. The wait time would be longer if he is from China or India.

Example 5 (EB3 Other Worker): Mr. Van Wyk is from South Africa. His employer is sponsoring him as a Farm Hand requiring less than 2 years of experience. He will not be able to file an adjustment of status application if his employer filed his labor certification after January 1, 2020. And based on the current visa bulletin will not be able to file the final stage of his green card for at least 40 months unless the visa bulletin becomes current. He will need to leave the USA when his nonimmigrant visa expires if it cannot be renewed, or he has not already filed an adjustment of status application. The wait time would be longer if he is from China or India. If he is here on an H2B or H2A Application, he will not be able to renew this visa if he filed an I140 application before the H2A needed to be renewed as he has shown immigrant intent.

It is imperative that workers who are impacted by this delay make plans to leave the United States upon expiration of their nonimmigrant status if their nonimmigrant status cannot be renewed and/or they have not already filed an adjustment of status application. This could all change in the coming months if the Department of State clears the backlog, but we just do not know. We are hoping in the worst-case scenario that the visa bulletin will become current again in October 2023. 

Tags: Green Card, Immigrant Visas, Immigration, Immigration Visas, EB-3 Visa, EB-2 Visa, EB-2 Visa Retrogression, Department of State

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