The December 2022 and recently released January 2023 Department of State (DOS) Visa Bulletins have shown retrogression in employment-based second preference (EB-2) categories for all nationalities. This means that all individuals seeking EB-2 preference petitions can no longer concurrently file for adjustment of status. Previously, only Indian and Chinese nationals were subject to this backlog in this preference category. Furthermore, EB-4, which is reserved for special immigrants, is also backlogged now for all nationalities. EB-4 is the category for the special adjustment of status provisions used by G-4 nonimmigrant retirees and their children who become eligible for such status, among other special immigrants.
In addition to the EB-2 and EB-4 preference backlogs, the January 2023 Visa Bulletin shows a retrogression for Priority Workers (EB-1) categories for Indian and Chinese nationals.
Background: DOS publishes immigrant visa availability in a monthly Visa Bulletin, which determines the cut-off dates for filing adjustment of status applications or immigrant visa applications abroad at consulates. The projected cut-off dates are based on predictions of immigrant visas in demand. The Visa Bulletin contains two separate charts that serve different purposes: The “Application for Final Action Dates” and “Dates for Filing Applications.” The Application for Final Action Dates determines when visas may finally be issued, whereas Dates for Filing Applications determines the earliest dates when applicants may be able to apply. The country of nationality in the Visa Bulletin is based on the country of birth, not citizenship. Once USCIS decides that there are immigrant visas available for filing additional adjustment of status applications, the Dates for Filing Applications chart may be used. In other cases, Application Final Action Dates chart are used to indicate when to file an adjustment of status application with USCIS.
The retrogression means that backlogged preference category beneficiaries who are in the United States and who have not already filed for adjustment of status will need to either maintain a nonimmigrant status until their priority date becomes current permitting them apply to adjust or seek permanent residence through an alternate category that has a current priority date. Alternatively, if unable to maintain a nonimmigrant status in the United States or apply for an alternate category, it may be necessary for certain EB applicants to depart and subsequently consular process. Affected individuals should consult with an immigration attorney to develop a legal strategy that works best for their specific situation.
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