Monday September 12, 2022

IMMIGRATION PUNDITS OR DATA: EMPLOYMENT-BASED PRIORITY DATE MOVEMENT DURING FY2023 STARTING OCTOBER 1, 2022

by Rabindra Singh

Statements like these – USCIS has used nearly all available employment-based immigrant visas for the 2022 fiscal year and will exhaust the supply of visas by the end of September 2022 – spread like a wildfire last week sending chilling messages down the spine of  pending and prospective Adjustment of Status (AOS) applicants. 

You do not need an immigration pundit but data to make projections on priority data (PD) movement. Bad data results in bad/unrealistic projections. My two cents to my current and prospective clients— give USCIS and DOS reasonable time (at least 2-3 months) to assess the data of the adjudicated and pending AOS applications before they can even make out where they stand during the upcoming fiscal year 2023. 

In short, USCIS along with the DOS needs a massive data clean up before they can reasonably predict the movement of PDs during the fiscal year 2023. 

Why? Because: (1)  USCIS needs to account for noncitizens who have multiple pending applications in different categories; (2) USCIS needs to estimate and consider the number of family members who may decide to immigrate with the principal applicant; and (3) considering where applications are in the adjudication process and how likely they are to result in visa use in the immediate future.  Last but not the least; DOS and USCIS also take into account AOS applicants with “multiple” pending or approved petitions in different EB categories who may decide to transfer between categories based on which category seems most advantageous to them.  

To ease the AOS applicants on the brink of nervous breakdown,  this past week USCIS issued FAQs addressing FY2023 employment-based AOS questions and states that the FY2023 annual limit will be higher than was typical before the pandemic but lower than FY2021 and FY2022. 

So, based on USCIS’ announcement, I see some light at the end of the tunnel, especially for those AOS applicants who received an RFE for submitting medical (Form I-693), Form I-485 Supplement J, etc., either from the local field office or from the USCIS Service Center.

Here are the major takeaways from the USCIS’ FAQs:

  • DOS currently estimates that the FY 2023 employment-based annual limit will be approximately 200,000, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023. USCIS is committed, with its partners at DOS, to using all the available employment-based visas in FY 2023. USCIS will continue to take multiple, proactive steps in coordination with its partners at DOS to maximize the issuance of visas.
  • In setting the first Visa Bulletin of the fiscal year each October, DOS makes reasonable estimates of the available employment-based immigrant visas in each category. It then, in collaboration with USCIS, reviews the pending inventory of AOS and immigrant visa applications, makes reasonable estimates of new applications, estimates how many of the pending and newly filed applications are likely to result in visa use during the fiscal year, and compares those values to the available visas.
  • When estimating how many pending or newly filed applications are likely to result in visa use during a fiscal year, the agencies consider a variety of factors, including but not limited to: the potential that a certain percentage of applications will not be approved; accounting for noncitizens who have multiple pending applications in different categories; estimating and considering the number of family members who may decide to immigrate with the principal applicant; and considering where applications are in the adjudication process and how likely they are to result in visa use in the immediate future.  DOS and USCIS also take into account AOS applicants with multiple pending or approved petitions in different EB categories who may decide to transfer between categories based on which category seems most advantageous to them.

Be reasonably optimistic during the fiscal year 2023, and allow some time to the USCIS and DOS to do the data churning so that they can make reasonable projections.

If you have any questions about pending AOS application or need assistance with any type of immigration matter, please contact HSD Immigration via phone [(312) 291 1234] or email [rsingh@hsdimmigration.com].

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