October 4, 2022

The United States Citizenship and Immigration Services (USCIS) has recently filed a Court Declaration. The declaration indicates that the agency has used almost all available employment-based (EB) visas for the 2022 fiscal year (FY 2022), which ends on September 30th, 2022. The agency also noted that the supply of 281,507 employment-based immigrant visas would dry up by the end of the month.

This claim is an impressive achievement for USCIS and the Department of State (DOS). The supply of EB visas for FY 2022 doubled the typical annual allotment due to consular closures during the pandemic. Despite the difficulties, the agency has declared that, as of September 6th, 2022, there are no remaining visas in the first-preference or second-preference EB visa categories for applicants from any country of chargeability. The USCIS also noted that due to high demand from EB-2 India, some applicants would likely see their visas retrogressed.

The Immigration and Nationality Act (INA) divides the EB visas into five categories to allocate them between different applicants. Each receives a fixed percentage of the annual allotment. For example, the first three preference categories receive 28.6% of the yearly budget. The EB4 and EB5 both receive 7.1%. However, when demand falls short in one of the visa categories, the INA 203(b) can allocate it to another EB category except for EB3. This provision resulted in more visas moving to the EB2 category for applicants with advanced degrees.

EB Visas for the first and second categories are currently unavailable, and the same will be true for the other categories before the end of the month. Despite the lack of availability, the USCIS will continue accepting applications for adjustment of status. However, once the supply of visa numbers runs dry, the agency will not be able to approve any additional cases. Therefore, these pending cases will retrogress, and final processing will await a new priority date in the fiscal year 2023. Until then, these individuals will continue to hold eligibility for work authorization, portability, and other benefits that result from an application for adjustment of status.

The complex regulatory and paperwork requirements that come with hiring foreign national workers can prove difficult for employers, and nowhere is this more true than with Form I-9. In addition, complex documentary and storage requirements can be a minefield for liability. However, one of the best ways to ensure compliance is with an electronic I-9 system. This tool can guide employers at every step while providing safe and secure storage of forms and documentation.

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