HR Legalist

Take a Number, Please: A Review of FY2022 Employment-Based Immigrant Visas (Green Cards) & Adjustment of Status Processing

Attainment of an immigrant visa—colloquially known as a “Green Card”—is the ultimate goal for many foreign nationals temporarily residing in the U.S. Having a green card means finally doing away with frequent visa renewals, processing nightmares and backlogs, and international travel issues. It also allows the green card holder to work for any employer in the U.S. The cost?: the green card process is nightmarish:  It is lengthy, complex,  costly, often unpredictable, and can be anxiety-inducing. In FY2022, we saw uncharacteristic agency activity that was a consequence of the prior year’s COVID-19 impacts on visa numbers, which proved to be chaotic and resulted in some winners and some losers.

As a way of background, Congress sets an annual numerical limitation on immigrant visas, according to the classification basis for the green card. There are family-based categories for family members of legal permanent residents and U.S. citizens. There are employment-based (EB) preference categories targeted at professional workers, highly skilled workers, and other types of roles for skills for which there is a shortage in the U.S. labor market. And, within each bucket, there are per-country numerical limitations to ensure that all the visa numbers are not eaten up by foreign nationals from countries with a historically higher volume of immigrants, resulting in backlogs and wait times reaching nearly a decade for some individuals.

Whether an applicant can have their green card issued pursuant to Adjustment of Status within the U.S. is dependent upon their priority date and the Department of State (DOS) Visa Bulletin, which is released monthly. Each month, DOS announces which priority dates are current within each EB preference category, organized by country of chargeability. For a green card to be approved/issued, an applicant’s priority date must be current under the relevant visa bulletin chart for that given month and the DOS must allocate a visa number to that case (which is requested by the USCIS officer when they are ready to approve). So, it is possible for a case to be current but to remain pending indefinitely.

COVID-19 had an unusual impact on FY2022. Specifically, due to unused family-based visa numbers in FY2021, the government allocated them to EB preference categories, leading to a higher-than-usual limit of 281,507 in FY2022. This was more than double the typical annual visa numbers for EB preference categories. To maximize use of the unused visa numbers, USCIS engaged in uncharacteristic messaging throughout the year, urging those eligible to adjust status in the EB-2 category to file their cases and take certain steps. It clarified rules and created a new filing address for those applicants requiring submission of a Form I-485 Supplement J.  It instructed those with pending adjustment of status cases to have their Form I-693 medical exams ready and waiting for submission upon request by USCIS. It transferred thousands of pending cases between its service centers and local field offices to best improve chances of processing within the fiscal year. And it made certain Form I-140, Multinational Manager and National Interest Waiver petitions eligible for premium processing to clear backlogs in the category and make them eligible for green card processing.

Expectedly, tens of thousands of applicants engaged in this process in the hopes of having their green cards processed, causing chaos and unpredictability. Anecdotally, amongst our clients, we filed EB-2 applications during 2022 that were all approved and green cards issued within months, while similar EB-2 applications previously filed and pending for nearly two years remain languishing. This is evidence of gaps in USCIS’s ability to identify and process pending cases as new cases poured in. USCIS also requested updated medical exams where they were not yet required, which precipitated in further case processing delays bleeding past the end of the fiscal year. Some folks were left in purgatory in September 2022 after having completed all the required steps, but unsure if a visa number was allocated to their case, as there is no way to find out absent the adjudicating officer saying so. For some of those folks, their priority dates are no longer current and they are back to the waiting pool. Ultimately, there were some winners and some losers.

In its FAQs, USCIS confirmed that all the EB numbers were used in FY 2022. It recently stated that in some instances an Adjustment of Status application may appear to be approved even though DOS has announced the visa numbers have been used up. For clients whose cases remain pending, it is not possible to know exactly when USCIS will make a final decision on them. If your priority date remains current, there is a decent chance that you are towards the front of the line when USCIS commences issuing green cards again in October using the new FY 2023 visa numbers. But how many months will it take? And will your case be one of the unfortunate ones lost in a cycle of transfers between service centers and local offices or will it be sent for off-site storage? These things are unknown.  For nationals from backlogged countries, such as India or China, the long wait for the green card resumes again.

This article illustrates the complexity and number of moving pieces intrinsic in immigration planning and processing. It is crucial that you work with your experienced Obermayer immigration counsel on navigating these and other issues as you walk to the path to lawful permanent residency.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.