October 2021 Visa Bulletin – EB-3 Retrogression; Filing Dates to Be Used for I-485 Filings in October; EB-3 Downgrade Window Closing Down

The U.S. State Department has just released the October 2021 Visa Bulletin which is the first Visa Bulletin for the new fiscal year (to start on October 1, 2021). The headline in the upcoming month’s Visa Bulletin is the lack of movement in many categories and the retrogression in EB-3 India and China which is an indication that the government has sufficient number of EB-3 applications for review and approval in the near term. USCIS will use the “Dates for Filing” for I-485 filings during month of October. We also share predictions for the anticipated visa cutoff date trends over the coming months especially the possible upcoming EB-3 ROW cutoff date.

Which India and China Employment-based Applicants Are Eligible to File I-485 in October?

By using the Filing Dates, USCIS will allow the following India and China applicants to file I-485 in the month of October 2021:

India

• EB-1 India with any priority date (PD);
• EB-2 India with PD before July 8, 2012 (or January 8, 2014 if downgrading to EB-3);
• EB-3 India with PD before January 8, 2014.

China

• EB-1 China with any PD;
• EB-2 China with PD before September 1, 2018 (or January 15, 2019 if downgrading to EB-3);
• EB-3 China with PD before January 15, 2019.

Summary of the October 2021 Visa Bulletin – Employment-Based (EB)

Please note that USCIS will determine and publish, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.

Summary of the October 2021 Visa Bulletin – Family-Based (FB)

USCIS will determine and publish separately, a few days after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.

Why Is There Not Much Employment-Based Movement in the First Visa Bulletin of the Fiscal Year?

As our clients and readers are aware, USCIS had been advancing the cutoff dates for employment-based cases very aggressively over the past 6-12 months and, as a result, many applicants were able to submit their I-485 applications with USCIS. It looks like USCIS has sufficient number of EB-3 cases (India and China) to use the newly-available quotas for the fiscal year, at least for the initial months, and, as a result, they are slowing down the rate of I-485 filings by retrogressing the cutoff date for EB-3 India and China.

USCIS Use of “Filing Dates” For I-485 Filings Presents an Opportunity for EB-3 Downgrades and I-485 Filings But the Window of Opportunity Will be Shrinking

The fact that USCIS has decided to use the “Filing Dates” for I-485 filings and that the fact that this category under EB-3 India is still more advantageous than EB-2 India means that there are still good opportunities to downgrade from EB-2 to EB-3 and file I-485.

Specifically, EB-2 India applicants with a priority date between July 8, 2012 and January 8, 2014 can benefit from EB-3 downgrade and I-485 filing. Similarly, the EB-3 downgrade “opportunity” window for China is priority date between September 1, 2018 and January 15, 2019.

We would like to caution that the trends in the last few months’ Visa Bulletins suggest that the window of opportunity for EB-3 downgrades may be narrowing because it looks like USCIS is receiving a sufficient number of EB-3 applications to meet their visa number quotas. In other words, time is running out for EB-3 downgrades.

We have put together a guide on understanding the EB-2 to EB-3 downgrading process, including who may benefit from it and how to go about the process.    We invite you to review our guide and also to contact us if we can be of any help.

FB-2A Remains Current for All Countries – Opportunity to File I-485 Adjustment of Status

The Family-based Second Preference (FB-2A) category remains “Current” for this month.   This action has been taken in an effort to generate an increased level of “demand” or number of filings.   

FB-2A category is for “Spouses and Children (generally under 21 years of age) of Permanent Residents”

This means that FB-2A applicants, especially those who are in the U.S. on valid status, should consider filing for I-485 Adjustment of Status as soon as possible in the event there is a cutoff date introduced in the following month’s Visa Bulletin.   Note that because the cutoff date is “Current”, it is possible to file a brand new FB-2A where the I-130 immigrant petition and the I-485 adjustment of status are filed concurrently.    So this is an opportunity to file I-485 not only for existing but also for new FB-2A cases.

FB-2A applicants who are pursuing the NVC/Consular may still consider completing their applications so that the U.S. Consular sections can complete the interview and the immigrant visa approval process as soon as possible.

Visa Bulletin Predictions – Employment-Based

The October 2021 Visa Bulletin provides some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1.   Expected to remain current for the foreseeable future.

EB-2 ROW. Expected to remain current for the foreseeable future.

EB-2 India.  Up to several months forward movement.

EB-2 China.     Up to several months forward movement.

EB-3 ROW.  A cutoff date is imminent, possibly as early as November.

EB-3 India/China. Retrogression; not much forward movement expected.

Current Date?

Our office stands ready to assist in the applicable process.  There are many applicants across many of the employment and family categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this month’s Visa Bulletin.