October 2023 Visa Bulletin – First Visa Bulletin for Fiscal Year Brings Limited Cutoff Date Recovery; Grim News for EB India

The U.S. State Department has released the October 2023 Visa Bulletin which is the first Visa Bulletin for the new fiscal year.  The headline in the upcoming month’s Visa Bulletin is the fact that despite wide expectations for significant forward advancement among many employment-based categories, the forward movement is somewhat limited and, in fact, some categories have moved back.   EB-2/EB-3 India Filing Dates may not advance meaningfully for “several fiscal years.”   USCIS will use the Dates for Filing for October 2023.

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

By using the Final Action Dates, USCIS will allow the following India and China applicants to file I-485 in the month of October 2023:

India

• EB-1 India with priority date (PD) (approved or pending I-140) before July 1, 2019;
• EB-2 India with PD before May 15, 2012;
• EB-3 India with PD before August 1, 2012.

China

• EB-1 China with priority date (PD) (approved or pending I-140) before August 1, 2022;
• EB-2 China with PD before January 1, 2020;
• EB-3 China with PD before September 1, 2020.

Summary of the October 2023 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 2023 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.

Future Expectations for I-485 Filings for EB-2 and EB-3 India

USCIS and DOS have reported significant volume of pending I-485 applications and specifically for EB-2 and EB-3 India.   According to USCIS,  they have sufficient pending I-485 applications for EB-2/EB-3 India applicants to “use up all of the available visas for FY 2024 and several fiscal years in the future.”

Many India applicants have been hoping for major forward movement in the cutoff dates in order to be able to file I-485 applications even if there is retrogression afterwards — not unlike the major movements that have occurred in the past.    However,  DOS and USCIS are subject to certain restrictions as to how much the cutoff dates can be advanced:

The Department of State (DOS) is required (INA Sec. 203) to make “reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year…and to rely upon such estimates in authorizing the issuance of visas.”    Basically, DOS is not supposed to advance the cutoff dates if they do not believe that there are sufficient number of visas available; and at this time, there is no such availability.   Hence, the lack of major forward movement in the  Visa Bulletin.

Similarly,  INA Sec. 245 requires that an immigrant visa to be “immediately available” when an I-485 adjustment of status is filed.   As a result, USCIS appears to be taking the position that they will be limiting the I-485 intake for the foreseeable future since the visa availability will be limited.

USCIS is reporting that they have enough inventory to use for several years’ supply of immigrant visas; as a result, given these INA provisions,  we expect that EB-2/EB-3 India will likely move extremely slowly (if at all) for the foreseeable future.   

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.