The Visa Bulletin Explained: A Guide to Understanding Visa Availability and Retrogression

What is the Visa Bulletin?

Published monthly by the U.S. Department of State (DOS), the Visa Bulletin provides information on visa availability and cutoff dates which determine which immigrant visa (green card) applicants are eligible to complete the final stages of the green card application process and which green card applications can be approved.  The availability and cutoff dates are essentially DOS’s allocations of the visa numbers based on the applicable annual green card quotas.

By law the U.S. government can only give out a certain number of green cards (or immigrant visas) each year and there are certain rules about how many visas can be used in each country and preference category (such as EB-2, EB-3, FB-2A, etc.).  Because the green card categories are oversubscribed (there are more applicants seeking green cards under almost every category), the Visa Bulletin helps the government keep track of all these visa number allocations and it also allows applicants to get some idea as to when they can apply for a green card based on their country of birth and their immigrant petition preference category and when it can be approved.  Put simply, the Visa Bulletin is a “waiting list” guide.

The Visa Bulletin Explained – How Does the Visa Bulletin Work?

The Visa Bulletin allows applicants with approved or pending immigrant petitions (such as I-130, I-140 and others) to determine if they are eligible to take the next step in their green card process. In each month’s Visa Bulletin DOL provides two sets of dates (“cutoff dates”) – “Dates for Filing” and “Final Action” for employment and for family-based immigrants which dates determine who can start and who can finish their last green card application stage.

If an applicant’s priority date is earlier than the published date for the relevant country and preference category during that month’s Visa Bulletin, then they are considered to be “current” and may be able to either start the last stage of expect an approval.

Illustration 1:

 

 

 

 

Based on this sample illustration, an EB-2 applicant born in India will need to have a priority date before May 15, 2012 in order to be eligible to submit their I-485 application.  Similarly, an I-140 EB-3 applicant born Germany (or any country other than India, China, Mexico or Philippines) will need to have a priority date before February 1, 2023 in order to be “current” and be able to file I-485.

If the applicant’s priority date is not current then they have to wait for the next month’s Visa Bulletin and hope that there is sufficient forward movement.

“Dates for Filing” – Starting the I-485 Adjustment of Status Filing or Consular Processing

The Visa Bulletin allows applicants to determine when they can start the last stage of the green card process by either filing Form I-485 Application to Adjust Status with USCIS (if they are in the US) or by pursuing consular processing through DOS.  This is determined by the section of the Visa Bulletin under the designation “Dates for Filing”.

Illustration 2:
(the example below based on date published in the December 2023 Visa Bulletin).

Mr. John is born in India, is in the U.S. in valid H-1B status and has approved EB-3 I-140 immigrant petition with a priority date of July 24, 2012.  Because the priority date (July 24, 2012) is earlier than the cutoff date for EB-2 India (August 1, 2012), Mr. John is eligible to submit his I-485 application as early as the first day of the month of the applicable Visa Bulletin.

 

 

 

 

 

 

Illustration 3:

Based on the same chart, Ms. Paul who is born in China and has EB-1 I-140 priority date of December 1, 2022 is not yet able to file her I-485 because December 1, 2022 is not earlier than August 1, 2022 in this example.  She will need to wait until the next month’s Visa Bulletin.

The USCIS “Adjustment of Status Filing Chart” Actually Determines Who Can File I-485 Applications

Very importantly and to make things a bit more confusing for I-485 filing purposes, each month USCIS decides on its own whether they will accept the “Dates for Filing” or the “Final Action” table of that month’s Visa Bulletin.   This announcement is made at about the same time DOS releases each month’s Visa Bulletin and is published on the USCIS website.  This announcement is separate from the DOS’s Visa Bulletin publication so prospective I-485 applicants have to check the USCIS acceptance chart.

“Final Action” – Expecting Approval of the I-485 or the Immigrant Visa Interview/Approval at the US Consulate

The Visa Bulletin also allows applicants to determine when they can expect approval of their pending I-485 Adjustment of Status application (if they are in the US) or their immigrant visa (if they are abroad or processing at the US Consulate).  This is determined by the section of the Visa Bulletin called “Final Action.”

When a pending application’s priority date is earlier than the published cutoff date for the relevant preference category and country of birth under the “Final Action” category, it is deemed that there is a “visa number available” for the applicant and USCIS or DOS can complete (and approve) the pending green card or immigrant visa application.  Most often USCIS would have already pre-adjudicated the I-485 application and they would simply be waiting for an available visa number and when this happens USCIS is often able to issue an approval of the green card fairly quickly.   For immigrant visa cases pending at the Consulate, having an available visa generally means that the Consulate is able to schedule a final interview and, if all goes well after the interview, to issue an approval of the immigrant visas.

Illustration 4:

Mr. Star is born in India, is in the US and has a pending I-485 application based on EB-1 petition with December 31, 2016 priority date.   The Visa Bulletin’s “Final Action” cutoff date is January 1, 2017.  Because Mr. Star’s priority date is current, his pending I-485 application can be approved by USCIS.

How Do I Know When I Can File My I-485 Application?

Because USCIS can change their use of “Dates for Filing and “Final Action” for I-485 filing purposes, the best place to check which priority dates can file I-485 during a specific month is USCIS’s Adjustment of Status Filing Charts from the Visa Bulletin page.

What Kind of Forward Movement We Should Expect for the Cutoff Dates?

Unfortunately, most category/country dates move differently from one another depending on the demand and number of immigrant visa candidates for this category/country.    Sometimes, dates advance by a month or two during each subsequent Visa Bulletin.  Sometimes, the forward movement is of 6+ months.   Very often, however, the movement is extremely small or none at all.     It is possible that some cutoff dates will move back during what is called “retrogression.”

What is Visa Retrogression?

Visa number retrogression happens when the demand for visas in a particular immigrant category exceeds the available supply (or the government’s expectation of demand), leading to a delay or backward movement (or retrogression) in the pace of issuance of visas.

For example, if USCIS/DOS have a sufficient number of filed and pending I-485 applications so that if all of them are approved, they would fill the entire visa number quota for the next 12 months,  it is expected that DOS will “retrogress” (or move back) the cutoff dates so that they can slow down the rate of new green card approvals (or new filings).

Unfortunately, if an I-485 applicant’s priority date retrogresses and they are no longer “current”, they will need to wait until the government clears the current backlog and until DOS are able to advance the cutoff dates at future Visa Bulletin.   An I-485 can be approved only when the priority date becomes current again under the Final Action category and this may mean multi-year wait.

Despite retrogression may mean long additional wait time for green card approvals, there are certain benefits and steps that are available to applicants with pending I-485s and with retrogressed visa category.   For example,  such applicants remain eligible to 3-year H-1B extensions and the pending I-485 allows for EAD work permit and advance parole approvals (up to 5 years).    Pending I-485 applicants also become eligible to job portability while keeping the existing green card process under AC21.

Which Set of Visa Bulletin Dates Determines Eligibility for 3-Year H-1B Extension Beyond the Six-Year Limit Based on Approved I-140 Petition?

H-1B holders who are looking to extend their H-1B petition beyond the six-year limit on the basis of approved I-140 petition without a current priority date should look at the “Final Action” dates.  This is the category which determines whether a visa number is “immediately available.”

Webinar for Applicants with Pending I-485s

For those applicants who have a pending I-485 (and are facing a long wait for a current priority date and approval),  we offer a webinar discussing the many aspects to successfully navigating a pending I-485 application process, including travel abroad, AC21 porting to a new employer, EAD/AP extensions and many others.    This is especially true when I-485 applications may be in process for a number of years due to visa number retrogression.   We offer a recording of our live webinar session where attorneys of our firm discuss and analyze a variety of aspects of the pending I-485 process.

Watch January 11, 2024 Recording: Webinar on Pending I-485s

Conclusion

It’s important for individuals to be able to understand and to regularly check the Visa Bulletin to stay informed about any updates to the final action dates.  Monitoring the bulletin allows applicants to adjust their expectations and plan accordingly, as retrogression can impact the timeline for visa processing and entry into the United States.    Our office monitors the Visa Bulletin very closely and we provide a client alert on our website and weekly newsletter immediately after the Visa Bulletin is released.

Our office is happy and available to assist clients with understanding the Visa Bulletin and, where applicable, with filing I-485 applications (free quote).    Please do not hesitate to contact us or consider our consultation options.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.