A Closer Look: India EB-3 Retrogression in Context

The U.S. Department of State anticipates that by July 1, 2023, all prorated employment-based third preference (EB-3) visa numbers available for Indian applicants in fiscal year (FY) 2023 will be exhausted; however, on October 1, 2023, the EB-3 final action date for India is expected to advance. The State Department announced this clarification on June 26, 2023, in light of the July 2023 Visa Bulletin, which shows the EB-3 final action date for India will retrogress from June 15, 2012, to January 1, 2009.

Quick Hits

• India currently faces oversubscription of immigrant visas in numerically limited categories, surpassing the 7 percent per-country limit set by federal law.
• The State Department estimates that by July 1, 2023, all of the pro-rated EB-3 visa numbers available to applicants chargeable to India in FY 2023 will be used.
• The annual limits will reset on October 1, 2023, with the start of FY 2024.

The announcement aims to address the oversubscription of immigrant visas from India and prorating the numerical limits established by the U.S. Congress. The following are key points from this announcement that will help employers gain a better understanding of the India EB-3 retrogression.

Visa Bulletin Process

The State Department is tasked with enforcing the annual visa limits set by Congress. When determining the final action date in the Visa Bulletin, the State Department compares the demand for visas from applicants in a specific immigrant visa category chargeable to a particular country to the remaining visas available for that country in the current fiscal year. If the demand exceeds the supply, a final action date is established based on the priority date of the first applicant who could not be immediately allocated a visa number.

Oversubscription and Prorating

India currently faces oversubscription of immigrant visas in numerically limited categories, surpassing the 7 percent per-country limit set by the Immigration and Nationality Act (INA). As a result, “applicants chargeable to India are subject to prorating under INA [Section] 202(e).” According to the announcement, the State Department anticipates that by July 1, 2023, all prorated EB-3 visa numbers available for Indian applicants in FY 2023 will be exhausted. Furthermore, due to the demand for EB-3 visas worldwide, the State Department stated that it could not allocate any additional unused visas to India under INA Section 202(a)(5).

Future Expectations

The annual limits will reset with the commencement of FY 2024, on October 1, 2023. As a result, the EB-3 final action date for India is expected to advance as the new fiscal year begins. The State Department noted, however, that “the movement of this date throughout the fiscal year depends on various factors such as visa demand and the [projected lower] Employment-Based annual limit” in FY 2024.

Retrogression Is Common

Retrogressions of this nature, resulting from visa exhaustion, have occurred frequently “for oversubscribed countries in Employment-Based categories, particularly when the annual limits were lower, as in pre-pandemic years.” Notable instances include the Visa Bulletins for June 2023, July 2019, June 2019, August 2018, and April 2018.

The retrogression of the India EB-3 final action date is a temporary measure implemented to address the oversubscription of immigrant visas and comply with the established numerical limits set by Congress. While applicants chargeable to India may experience temporary delays, the annual reset in October 2023 is expected to advance the EB-3 final action date.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will provide updates on the Immigration blog as additional information becomes available.

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