The Visa Bulletin is a critical document for anyone navigating the intricate world of U.S. immigration. This article aims to provide a comprehensive analysis of the October 2023 Visa Bulletin and its impact on Indian applicants in the EB-1 category, which includes the EB1A green card category for Extraordinary Ability petitioners.
Understanding the Visa Bulletin tables
Before delving into the recent changes, it’s essential to understand the core elements of the Visa Bulletin, particularly Tables A and B.
- Table A or Final Action Date: This table governs the availability of visa numbers. In other words, no applicant will be given a green card until their date becomes current according to Table A. Typically, it is also used as the main table to allow Adjustment of Status applicants to file their cases, except when USCIS allows them to use Table B instead.
- Table B or Dates for Filing: Designed for initiating consular processing. This table typically shows slightly later dates than its counterpart.
While both tables have their role, Table A holds the key to your green card approval, as it determines visa number allocation.
India’s Situation before October 2023
To appreciate the recent developments fully, let’s revisit September 2022 when India enjoyed the coveted “current” status in Table A for the EB-1 category. This was a game-changer for many petitioners, given the lengthy backlogs in other green card categories like EB-2 and EB-3.
July 2023: A Manageable Backlog
In July 2023, the priority date for Indian applicants was February 2022 for final action (Table A) and June 2022 for filing (Table B). The backlog of just over a year was challenging but manageable compared to the decade-long EB-2 India backlog.
August 2023: Unexpected Retrogression
August 2023 was a shocker. The priority date regressed from February 2022 to January 2012—a ten-year retrogression. This sudden change left the immigration community bewildered. The Visa Bulletin cited oversubscription in the Indian category as the reason for this unexpected shift and stated that with the start of Fiscal Year 2024 in October, dates should go back to where they were in July.
September 2023: No Respite
September brought no relief, as it was the last month of fiscal year 2023 and India EB-1 was still oversubscribed. The retrogression to January 2012 persisted in both Table A and Table B.
October 2023: Hope for the New Fiscal Year
Expectations were high for the October 2023 Visa Bulletin, as it marked the start of fiscal year 2024. A group of congressmen had asked USCIS and Department of State to make all countries Current at the start of FY2024. But nothing further from that!
In EB1, it was hoped that there would be a significant advancement for Indian EB-1 applicants as (somewhat) promised in the August bulletin. However, the dates “only” advanced 5 years to January 2017, showing a six year backlog that is very significant.
Making Sense of Retrogression
Retrogression is undeniably discouraging, but it’s crucial to refrain from panic. The immigration system is unpredictable, and USCIS bases its decisions on various factors, including demand, congressional limitations, and unforeseeable variables.
The positive view: demand and green card transfers
Understanding demand is key. While a January 2017 priority date might seem disappointing, it doesn’t factor in the uncertainties. USCIS can’t predict how many applicants will actually file for adjustment of status. This uncertainty may prompt USCIS to adjust its decisions based on actual demand. For example, many applicants with I-140 approved could have left the country, have lost their job at a green card-sponsoring company, or obtained their immigration benefit through a spouse. In that case, they may not actually file an adjustment of status now.
Additionally, Indian EB-1 candidates could benefit from the transfer of unused visa numbers from other categories. On one hand, USCIS has now published that Fiscal Year 2024 will have 165,000 employment based green cards adjudicated following the transfer of unused visa numbers from the family-based green card categories. This will impact the EB-1A category as well.
Moreover, the green card system is such that unused numbers from lower EB-4 and EB-5 categories may revert back to the highest EB-1 category. This is known as the Fall-Down system and is depicted in the diagram below:
Staying Hopeful and Informed
Despite the challenges, Indian EB-1 applicants should remain hopeful and engaged. Staying informed about the Visa Bulletin’s changes is crucial, as a window of opportunity to file Adjustment of Status could open at any point. Being prepared to act swiftly is vital for those serious about securing an EB-1 green card.
In conclusion, the recent retrogression in the EB-1 category for Indian applicants presents undeniable challenges. However, it’s essential to remember that the situation is dynamic, and USCIS decisions are influenced by numerous factors. Staying informed, maintaining hope, and being ready to seize opportunities are essential for navigating the complex landscape of U.S. immigration.