Close up of American visa label in passport. Shallow depth of field.

Quick Hits

  • USCIS and the State Department have significant volumes of adjustment of status and immigrant visa applications in their inventories, limiting the supply of available immigrant visas.
  • USCIS is reporting encouraging forward movement for EB-1 China and India.
  • USCIS authorized use of Dates for Filing chart.

The January 2024 Visa Bulletin

USCIS confirmed in the January 2024 Visa Bulletin that for January 2024, the Dates for Filing chart will continue to be used in determining eligibility for I-485, Application to Register Permanent Residence or Adjust Status filings.

The State Department’s monthly Visa Bulletin provides a summary of the availability of immigrant visas for the coming month. Within each category, the Visa Bulletin provides a Final Action Dates chart reflecting priority dates considered current and available, and a Dates for Filing chart reflecting priority dates anticipated to become current during the fiscal year (FY).

The Dates for Filing chart shows the following:

  • The EB-1 worldwide category remains current, whereas the EB-1 China category will advance by five months to January 1, 2023, and EB-1 from India will advance eighteen months to January 1, 2021.
  • EB-2 India will remain at May 15, 2012.
  • EB-3 worldwide remains the same (with the exception of EB-3 China Professional/Skilled Worker category, which will advance by ten months, to July 1, 2021).
  • The EB-4 Certain Religious Workers category for all areas, which was “unavailable” last month, will become available September 1, 2019.

The Final Action Dates chart for employment-based categories follows below.

Source: U.S. Department of State, January 2024 Visa Bulletin

Immigrant Visa Availability for the Remainder of FY 2024

With January 2024 beginning the start of the second quarter of the government’s fiscal year, we see forward movement in some employment-based categories, particularly the first preference (EB-1) category compared to the first quarter of FY 2024.

At the start of FY 2024 on October 1, 2023, there were hopes that the final action dates for many visa categories would advance significantly in the new fiscal year, however, the Visa Bulletins for October, November, and December 2023, and January 2024, have shown slow movement. A look at USCIS’s Employment-Based Adjustment of Status frequently asked questions (FAQs) provides insight into why.

The State Department indicated that in FY 2023, it used 197,091 employment-based immigrant visas, exhausting all available visas, and approved more than 145,000 employment-based adjustment of status applications. The State Department estimated that the employment-based annual limit for FY 2024 would be approximately 161,000 visas due to unused family-sponsored visas from FY 2023. There are also 10,874 visas available from prior years’ EB-5 category.

The FAQs note that “[f]or some categories, including EB-2 and EB-3 for noncitizens chargeable to India, USCIS and the State Department have already received “sufficient applications … to use up all of the available visas for FY 2024 and several fiscal years in the future.” Based on demand, the agencies determined that “it is not reasonable to advance the dates in the Visa Bulletin” to accept substantial additional filings this fiscal year.

USCIS explained that one of the reasons for the continued retrogression is that “fewer unused family-based immigrant visa numbers are carrying over to increase the number of available employment-based immigrant visas in FY 2024” as the agencies return to normal operations following the COVID-19 pandemic. The annual employment-based visa limit will return to 140,000 “once there are no more unused family-based numbers.”

USCIS also acknowledged “the imbalance between the high demand for immigrant visas and the decades-old annual statutory limits,” and indicated “that only Congress can alleviate the statutory constraint on immigrant visa numbers.” Based on USCIS’s explanation, it is anticipated that final action dates may not advance beyond the dates of filing during FY 2024.

In anticipation of the continued long wait for an immigrant visa, USCIS implemented the following measures to provide alternative solutions and protections for employer-sponsored noncitizens:

  • Establishing (PDF, 352.94 KB) a 5-year validity period for employment authorization documents (EADs) issued to noncitizens with pending adjustment of status applications, effective Sept. 27, 2023;
  • Clarifying (PDF, 352.53 KB) eligibility criteria for O-1A and O-1B individuals of extraordinary ability;
  • Updating (PDF, 316.12 KB) USCIS Policy Manual guidance regarding eligibility for the EB-1 Extraordinary Ability and Outstanding Professor or Researcher visa categories;
  • Clarifying (PDF, 379.49 KB) eligibility for EB-2 individuals of exceptional ability and advanced degree holders with national interest waivers;
  • Updating (PDF, 345 KB) the USCIS interpretation of the Child Status Protection Act to prevent some child beneficiaries from aging out of child status and allowing them to adjust immigration status with their parents;
  • Clarifying (PDF, 317.81 KB) the evidence required for physicians seeking a national interest waiver of the job offer requirement;
  • Clarifying (PDF, 282.22 KB) eligibility criteria and standards for applications for compelling circumstances employment authorization documents (EADs);
  • Clarifying (PDF, 288.53 KB) eligibility for J-1 exchange visitor status;
  • Clarifying options for workers whose employment has terminated, either voluntarily or involuntarily, to remain in the United States while securing new employment;
  • Updating and expanding the list of degree fields qualifying noncitizen graduates of U.S. universities for STEM optional practical training (OPT);
  • Clarifying (PDF, 498.85 KB) that USCIS considers certain E-1, E-2, E-3 and L-2 nonimmigrant dependent spouses employment authorized incident to status, such that they are not required to apply and wait for an EAD, and applying the automatic extension of employment authorization for renewal EAD applications filed by these E and L spouses as well as certain H-4 spouses;
  • Establishing a process for healthcare and childcare workers to make an expedited request for processing of initial EAD applications that have been pending for more than 90 days, or renewal applications that would expire within 30 days or have already expired;
  • Expanding premium processing to all filers of Form I-140, Immigrant Petition for Alien Workers, and certain filers of Form I-765, Application for Employment Authorization, and Form I-539, Application to Extend/Change Nonimmigrant Status, while adhering to the congressional requirement that such services must not cause an increase in processing times for regular immigration benefit requests;
  • Launching a new online form for individuals, attorneys, and accredited representatives to request an in-person appointment at their local field office without having to call the USCIS Contact Center.”

Key Takeaways

Barring a change to the Immigration and Nationality Act or an unexpected reduction in noncitizens seeking employment-based immigrant visas, noncitizens from all countries can expect to see longer waits for immigrant visas.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.

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Close up of American visa label in passport. Shallow depth of field.
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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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