Last year’s October visa bulletin saw significant forward movement in dates, especially for EB-3 India, because of the large number of additional employment-based visas that were left over from the family-based preferences. However, this year’s October visa bulletin is far less impressive. See the link below:
At the start of each fiscal year, USCIS typically allows applicants to file for adjustment of status using the filing dates chart, as opposed to the final action date chart. This allows applicants to file the I-485 as well as a request for work authorization and travel documents. Last year the filing dates for EB-2 India went from August 15, 2009, to May 15, 2011, almost a 2- year jump. EB-3 India saw greater forward movement with the dates going from February 1, 2010, to January 1, 2015.
This huge jump in EB-3 priority dates saw thousands of applicants filing downgrade applications to allow them to concurrently file for adjustment. However, USCIS has not been able to adjudicate the applications fast enough and as a result, a significant number of employment-based visas from the current fiscal year are expected to go to waste. This means that those applications will be counted under the FY 2022 numbers, a total of 290,000.
Charlie Oppenheim, the individual responsible for the visa bulletin, stated in his, “Chats with Charlie,” YouTube video on 09/15/2021, that the inventory projections show demand for EB-3 will already exceed the number of visas available throughout FY 2022. As a result, he made the decision to retrogress these dates which have gone from March 1, 2014, to January 8, 2014. Charlie has stated that he expects retrogression in FY2022, but he is not sure when or by how much.
However, the filing dates for EB-2 India have jumped forward from December 1, 2011, until July 8, 2012. As of now, EB-3 dates are still ahead of EB-2 by 18 months. I suspect that EB-2 dates will move forward faster than EB-3 and will exceed the EB-3 dates within a relatively short time.
Some applicants will be wondering whether it’s worth doing an EB-2 to EB-3 downgrade. It depends on the person’s priority date and individual circumstances. If doing a downgrade now makes sense to file the I-485 and get a head start on the work authorization it may be worth it. Filing a new petition as opposed to an amendment is arguably the way to go, and the way that our firm has filed all of the downgrade applications. This means if EB-2 dates surpass EB-3, as expected, the applicant can elect to have their adjustment of status adjudicated based on the prior EB-2 filing. However, given that the current visa bulletin projects that EB-2 India will move up several months in the coming months it may just be better to hold tight and save the cost of filing a downgrade.
If you have questions regarding filing for adjustment, either with or without a downgrade, please reach out to PLG Partner Chris Prescott at cprescott@patellegal.com.