The U.S. Citizenship and Immigration Services has been making significant efforts to prevent the loss of available employment-based visa numbers for Fiscal Year 2022, as we reported in July.

The good news is that the USCIS was successful.

The bad news is that there are – or very soon will be – no more visa numbers available for the remainder of Fiscal Year 2022, which ends on September 30. Without visa numbers, the USCIS cannot approve further I-485 (green card) applications. This applies to applicants from all nations for EB-1 visas (highest preference), EB-2 visas (advanced degree), and EB-3 visas (professional, skilled, and other workers).

The negative impact is expected to be felt most by EB-2 applicants born in India because the visa availability date for this category has regressed almost three years, to April 1, 2012. In other words, to get an EB-2 visa in Fiscal Year 2023 – which starts October 1, 2022 – an Indian-born applicant would have to have applied before April 1, 2012. If visa dates move forward monthly, for Indian applicants, there is a wait of approximately 10 years from date of application to date of approval and issuance of an EB-2 visa.

Information about the exhaustion of visa numbers for FY22 became available through a Declaration of Andrew Parker, a branch chief with the USCIS. According to Mr. Parker’s Declaration, employment-based visa numbers are currently exhausted worldwide in the EB-1 and EB-2 visa categories, and EB-3 visas worldwide will be exhausted this week. The Declaration was filed last Tuesday in connection with a lawsuit against the USCIS that is pending in federal court in Seattle.

Although it is likely that green card applications can continue to be filed through the remainder of this month, they cannot be approved this month. They may not even be able to be approved in FY23 unless the applicant’s priority date continues to be available when the application is adjudicated. That is not likely to be the case for many EB-2 applicants born in India because of the regression of the EB-2 visa availability date.

Constangy’s Immigration Practice Group is available to help applicants and employers navigate the many issues that could arise during this green card transition period.

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