The Dramatic Increase in Employment-Based Green Card Availability Explained

Green Card
The past 10 months have seen significant forward movement in the backlog dates for Immigrant Visas (or Green Cards) as reported each month in the U.S. State Department’s Visa Bulletin. Since October of 2020, the EB-2 and EB-3 categories for China have advanced by 19 months and 16 months, respectively, and for India have advanced 14 months and almost 2 years, respectively.

The EB-1 category has been “Current” for both China and India since then as well. In addition, the EB-1, EB-2 and EB-3 categories have been “Current” for Mexico. This forward movement has resulted in the filing of tens of thousands of I-485 Adjustment of Status Applications by foreign nationals currently living and working in the U.S. in a nonimmigrant status who had previously been looking at multiple year waits to get to this stage in the Green Card process. While we are just now starting to see approvals of these I-485 applications, the large numbers of these cases have stressed operations at the USCIS and resulted in delays particularly in the issuance of Employment Authorization and Advance Parole documents. This article will explain the reason for this significant forward movement and provide some information about likely trends in the coming year.

As a bit of background, the United States issues a limited number of Green Cards each year. There are annual quotas both for the various types of Family-based Green Cards (480,000) and Employment-based Green Cards (140,000). In addition, there is a per country percentage limitation in each category tied to the fiscal year of the USCIS which ends on September 30th. Under these quota rules, unused Green Cards in the Family-based categories are added to the Employment-based categories and vice versa. Typically, a very large percentage of Family-based Green Cards are issued by U.S. Consulates abroad (through the Immigrant Visa application process) and a very large percentage of Employment-based Green Cards are issued by the USCIS in the United States (through the Adjustment of Status application process).

Beginning early in 2020 with the onset of the COVID-19 pandemic, U.S. Consulates around the world have either been shut down for periods of time or have been operating with limited staff. In addition, from April 23, 2020 to February 24, 2021, U.S. Consulates abroad were unable to issue Immigrant Visas in most categories due to a Trump-era Presidential Proclamation that was lifted by President Biden.

The impact of these two factors on the availability of Employment-based Green Cards was significant. 2020 and 2021 saw dramatic reductions in the issuance of Green Cards in the Family-based categories. As of February 2021, there were approximately 473,000 such cases backlogged at U.S. Consulates abroad. As a result of this significant backlog as well as the continuation of limited operations at most U.S. Consulates, the U.S. State Department (“DOS”) predicts that the issuance of Green Cards in the Family-based categories will continue to be slow through the end of the 2021 fiscal year and into 2022.

This reduction in the issuance of Green Cards in the Family-based categories has resulted in the allocation of unissued Green Cards to the Employment-based categories. In the current fiscal year (October 1, 2020 to September 30, 2021), the allocation of Green Cards in the Employment-based categories was increased by unused Green Cards in the Family-based categories from 140,000 to 262,000. It is this historic increase in available Employment-based Green Cards has driven the rapid advances in backlog dates.

According to the DOS, this trend will continue into 2022. The DOS projects that the allocation of Green Cards in the Employment-based categories will increase as a result of unused Family-based Green Cards, to 290,000 in fiscal year 2022 (October 1, 2021 to September 30, 2022) – this is more than double the regular annual allocation. While indications are that forward movement in the EB-2 and EB-3 categories for China and India will continue at a moderate pace through the end of the current fiscal year, the expectation is that there will again be rapid increases in these categories beginning in October of 2021. The Chief of the Visa Control and Reporting Division at the DOS, Charlie Oppenheim, provides a monthly livestream up-date on the movement of the visa backlog numbers on the DOS Consular Affairs YouTube channel several days after the Visa Bulletin is issued – we recommend that those interested in getting more information on this subject tune in and subscribe to this informative monthly presentation.

While all of this is good news for foreign nationals with pending Employment-based Green Card cases, the good news is tempered somewhat by the reality of processing such a large number of cases. Visa numbers that are not used by the end of a fiscal year do not automatically transfer over to the next fiscal year in the same visa category. This means that Green Card cases relying on the extra visa numbers must be approved by the end of the government’s fiscal year on September 30th. The USCIS is now allocating additional resources to process as many pending I-485 Adjustment of Status applications as possible before the end of the current fiscal year, but it is widely expected that all 262,000 available numbers will not likely be used this year. The good news is that the total number of available Green Cards in the Employment-based categories in the 2022 fiscal year will be even higher at 290,000.

Given the high volume of cases being filed as a result of the aggressive forward movement in the backlog dates, it is important that foreign nationals make sure to move their cases along as quickly and efficiently as possible. This includes making sure that I-485 applications are as complete as possible to reduce the risk of an RFE and then responding to RFEs as quickly as possible. Although caused by a tragic global pandemic, the availability of employment-based Green Cards is at an historic high and foreign nationals should keep a close watch on the movement of the backlog dates in the monthly Visa Bulletin and be prepared to file their I-485 Adjustment of Status applications as quickly as possible.

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