Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Department of State (DOS) released its Visa Bulletin for October 2022. The Visa Bulletin is a monthly DOS publication regarding immigrant visa availability. The Bulletin lists the cut-off dates that govern visa availability and determines which applicants are eligible to file for adjustment of status (final stage of Green Card processing), as well as which applicants are eligible to be granted permanent residency. Since Congress sets limits on the number of immigrant visas that can be issued each year, to adjust status to legal permanent resident, an immigrant visa must be available to the applicant both at the time of filing and at the time of adjudication. Applicants who have a priority date earlier than the cut-off date published in the most current Visa Bulletin are eligible to apply for permanent residence depending on varying factors.
The October 2022 Visa Bulletin is of particular importance as it includes a significant retrogression in priority dates for the EB-2 visa category for individuals born in India. During FY2022, the DOS issued Visa Bulletins with substantial forward movement in the EB-2 category for Indian nationals in order to utilize a historically higher number of employment-based immigrant visas that became available as a result of unused visa numbers in FY2021. Given the high volume of applications received in FY2022 under the EB-2 category for India, the Department has projected lower visa availability in the EB-2 category for India during FY 2023, resulting in the drastic retrogression in an effort to avoid exceeding the annual numerical limit.
As a result of the retrogression, many Indian nationals will now continue to wait until the Visa Bulletin progresses and their priority date becomes current. As many of these individuals have been waiting for over 10 years, the retrogression is a setback on their long journey to permanent residency.
Many might now be asking what does this mean for those individuals whose priority dates were current and who filed an application for adjustment of status and now, their priority date no longer meets the cutoff date?
For adjustment of status applications filed and pending with USCIS, the officer will review visa availability at the time of adjudication and if an applicant’s priority date no longer meets the cut-off date published in that month’s Visa Bulletin, their case will be held in abeyance until their priority date is once again current and a visa is available. During this period of abeyance, applicants are eligible to continue to apply for and renew their employment authorization document (EAD) and advance parole (AP) travel document until their case is adjudicated. USCIS will resume adjudication of cases held in abeyance and finalize processing of visa-retrogressed cases when an applicant’s priority dates become current based on the dates in the current month’s Visa Bulletin. When USCIS resumes adjudication, they will review the file and may request updated information from an applicant in the form of a request for evidence or an interview notice.
As retrogression can lead to lengthy adjudication periods for adjustment of status applications, it is even more crucial for applicants to make sure they keep USCIS informed of their current address. USCIS will send all correspondence to an applicant’s last known address on record and if USCIS is not notified of a change of address, it could jeopardize an applicant’s case in the event they miss important correspondence or deadlines. Non-U.S. citizens must file an AR-11 to report a change of address to the USCIS within 10 days of the change.