The United States Department of State reported on October 1, 2022 that, in fiscal year 2022, a total of 281,507 visas were issued among its five employment-based preference categories – a number that is over double the annual allotment of 140,000 employment-based visas. For fiscal year 2023, the Department of State projects a total of 197,000 employment-based visas will be issued. This number includes approximately 57,000 unused family-based visa numbers from fiscal year 2022. The projected numbers for fiscal year 2023 come with disappointment given the record number in fiscal year 2022. A lower employment-based visa limit translates to longer wait times for U.S. employers before their prospective immigrant employee can enter the U.S. and commence employment. This may leave many employers with the crucial need for labor.
Employers seeking to hire immigrant workers from India and China in the second and third employment-based preference categories are particularly at a shortfall as the priority dates for these categories are current only for those who filed prior to 2018 and, in two instances, prior to 2012. Further, the priority dates retrogressed in the second employment-based category for immigrant workers born in India. Each intending immigrant employee is given a priority date upon the filing of a PERM labor certification or Form I-140, Immigrant Petition for Alien Worker by their prospective employer. An immigrant employee cannot move forward with their process for an immigrant visa until their priority date is current. Every month the Department of State publishes its Final Action Dates Visa Bulletin, wherein the cut-off priority date is shown for each employment-based preference category according to the immigrant employee’s country of birth. If an immigrant employee’s priority date is earlier than the cut-off priority date, then their priority date is current. Visa retrogression has long been a topic of concern within the U.S. immigration system, affecting both family-based and employment-based immigration. Visa retrogression occurs when the number of individuals seeking an immigrant visa exceeds the number of visas available in the applicable employment-based preference category. Indian and Chinese immigrant workers living abroad now find themselves with a long wait ahead before being able to enter the U.S. with their immigrant visa.
By the same token, those Indian and Chinese immigrant workers temporarily legally residing in the United States must wait until their priority dates are current before an immigrant visa is available to them through which they can adjust their status to a lawful permanent resident. However, the Department of State also publishes a Date of Filing Visa Bulletin that allows immigrant workers legally residing in the United States to file their application to adjust status to a permanent resident so long as their priority date is earlier than the cut-off priority date shown for their category and country of birth. These immigrant workers will continue residing in the United States legally while their application is pending and will not obtain an immigrant visa and thus permanent resident status until their priority date is current. The Date of Filing Visa Bulletin is especially useful for an employer seeking to retain an employee who faces the risk of falling out of legal status. Once an immigrant employee falls out of legal status or, in other words, their legal status in the U.S. expires, additional hurdles arise for the employer and immigrant employee.
The goal of an employer seeking to hire an immigrant worker is to grow its workforce with qualified employees. In light of the information published by the Department of State and its projection for fiscal year 2023, it is in the best interest of an employer to begin the process of petitioning an immigrant worker and obtain a priority date for them as soon as possible. As for those immigrant employees legally residing in the United States, it is important to be vigilant of the Visa Bulletins published by the Department of State so they do not lose the opportunity of filing an adjustment of status application or urging the United States Citizenship and Immigration Service to move their application along, as an immigrant visa may be otherwise readily available.
Ednna Meraz Ibarra is an attorney with Reid & Hellyer, APC, in its Murrieta office, where she practices business law and immigration law. She may be reached through our website at https://rhlaw.com/attorneys/ednna-meraz-ibarra/ or at (951)695-8700.