USCIS Answers Questions on Fiscal Year 2023 Employment Based Adjustment of Status Applications

The USCIS has provided an FAQ due to the employment-based (EB) annual limit for fiscal year (FY) 2023 being higher than was typical before the pandemic, though lower than in FY 2021 and FY 2022. USCIS has stated they are dedicated to using as many available employment based visas as possible before September 30, 2023. A few key takeaways from the FAQ are provided below:

1. Regarding an estimate on how many will be used between USCIS and DOS, USCIS has stated: “DOS currently estimates that the FY 2023 employment-based annual limit will be approximately 197,000, due to approximately 57,000 unused family-sponsored visa numbers from FY 2022 being added to the employment-based limit for FY 2023. Through March 31, 2023, the two agencies have used more than 110,000 employment-based immigrant visas (FY 2023 data is preliminary and subject to change). USCIS is approving adjustment of status applications in the employment-based preference categories at a steady rate and is committed, with its partners at DOS who are also processing a high volume of visas, to using all the available employment-based visas in FY 2023. USCIS will continue to take multiple, proactive steps in coordination with its partners at DOS to maximize the issuance of visas.”
2. Why does visa bulletin dates retrogress? The USCIS has stated that: “Congress created a system in which DOS must regularly adjust the population of noncitizens who can potentially be issued visas (set by the Final Action Dates) in order to create sufficient demand for such visas (allowing the agencies the best chance to use all of the visas) while also restricting the issuance of such visas (to ensure that visa issuance remains within the limits established by Congress). When the demand for visas is higher than estimated and/or the availability of visas is lower than estimated, this may require retrogression of a Final Action Date to ensure that visa use remains within the limits established by Congress and that visas within a particular queue (based on category and country of chargeability) are generally allocated to those with the earliest priority dates as possible.”
3. Will retrogression affect a consular processing case as well? Yes, this will affect consular processing cases as well. USCIS states the following on this: “Yes. DOS and USCIS are only authorized to issue immigrant visa numbers (for purposes of consular processing or adjustment of status) if the applicant in the given family-sponsored or employment-based preference category has a priority date which is earlier than the date shown in the Final Action Dates chart of the Visa Bulletin for their country of chargeability and immigrant visa category (or the Visa Bulletin shows that the category is current, that is, visa numbers are authorized for issuance to all qualified”
4. A question that is very applicable to job portability, USCIS states the following on whether a retrogression resets the 180 day portability clock: “No. For more information about portability, please see Volume 7, Part E, Chapter 5 of the USCIS Policy Manual. (Added 10/26/2022)”.

The FAQ in full can be found on the USCIS website. Reach out to our office to help answer any questions you may have on the retrogression or your pending Adjustment of Status case.

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