U.S. Citizenship and Immigration Service (USCIS) released the April 2021 Visa Bulletin. This month, the bulletin notifies applicants if they are able to submit their I-485, Adjustment of Status Application. The below article explains the cause of the visa backlogs, how to use the Visa Bulletin Charts, and what to expect in the for the rest of FY 2021.

The Visa Backlogs

Congress allocates a limited number of employment-based immigrant visas (“green cards”) for each year. They are divided between several preference categories. The Immigration and Nationality Act sets a worldwide level of 140,000 for annual employment-based preference immigrants. Each country can receive no more than 7% of the total annual family-based and employment-based preference limits. This totals approximately 25,620 visa/green cards each year per country.

In preference categories in which there is more qualified applicants than available visas numbers, the preference category will become oversubscribed or “backlogged.” This leads to the U.S. Department of State to create a “priority date cut off” for the preference categories that are backlogged. This is illustrated by the second preference employment-based category (EB-2) of Indian and Chinese nationals as well as the third preference employment-based category (EB-3). The backlog occurs at the final stage of the permanent residence process.

The backlog comes into effect at the final state of an applicant filing for adjustment of status. An employer who has obtained a certified Application for Permanent Employment Certification (PERM) and has filed an I-140 Petition on behalf of an employee/applicant. That applicant can’t move forward to file his I-485 application or immigrant visa until his priority date becomes current. The date the employer files a PERM on behalf of the applicant determines the priority date. For the priority date to “lock in” the Department of Labor must certify the PERM and USCIS must approve the employer’s I-140 Immigrant Petition. Once the priority date is locked in, the applicant needs to monitor the Visa Bulletin Charts to determine when he or she is eligible to file for Adjustment of Status.

Determine if your Priority Date is Current

The Department of State publishes current immigrant visa availability information through the monthly Visa Bulletin. The bulletin states when those with statutory limitations are eligible to apply based on their priority date. The Department of States publishes two different charts per visa preference category. The charts are:

  • Application Final Action Dates (dates when visas may finally be issued); and
  • Dates for Filing Applications (earliest dates when applicants may be able to apply).

The USCIS makes the determination whether an applicant’s priority date is current to file Adjustment of Status (I-485 application). When USCIS determines there are immigrant visas available, USCIS provides the Dates for Filing Applications chart. Otherwise, USCIS instructs the applicants to use the Application Final Action Dates chart. Department of State and USCIS coordinate each month and shortly after the Department of State releases the Visa Bulletin Chart, USCIS post the relevant chart to be used for each month.

Prediction for FY 2021

Each month, Charlie Oppenheim who is Chief of the Visa Control and Reporting Division of the U.S. Department of State provides insight and predictions related to the visa bulletin. For April, Mr. Oppenheim provides some updated predictions for the rest of the fiscal year (FY) 2021, which runs through September 30, 2021.

As a result of the global pandemic, the usage of family-based immigrant visas remains low. This is a result of over 95% of family-based immigrant visas being processed by consular posts overseas. These consular posts continue to have limited if any visa appointment as a consequence of the pandemic.

Any unused family-based visas will be added to employment-based visa preference categories. Therefore, the potential available employment-based visas for the next fiscal year will be at least 275,000 according to Mr. Oppenheim. This will have a positive impact on the employment-based visa available.

Mr. Oppenheim has the following prediction of Employment-Based Preference Categories:

  • Employment-Based, First Preference (EB1)
    • EB1 will remain current for the rest of the fiscal year 2021 (FY21).
  • Employment-Based, Second and Third Preferences (EB2 & EB3)
    • There will be rapid movement in the EB2 and EB3 categories for China and India, beginning in May 2021. EB2 and EB3 cutoff dates also may advance significantly in FY2022. More will be known about FY2022 later in the year. Mr. Oppenheim does not yet have figures on the number of EB2-to-EB3 “downgrade” cases, so he is not able to predict how that will impact visa availability.

ILBSG will continue to monitor and report predictions and movements related to the monthly visa bulletin. If you have any questions regarding your priority date or any immigration issue, contact us at ILBSG. We work with you to ensure you get the right advice for your specific situation.

April 2021 Visa Bulletin i-485 immigration USCIS Visa Bulletin