Highlights from the October 2019 Visa Bulletin: The Start of the 2020 Federal Fiscal Year

The October 2019 visa bulletin has been released. The October bulletin shows some notable movement in a few categories, but not as much movement as we had hoped for in others. The October bulletin is a big deal since it represents the start of the next federal fiscal year when annual visa numbers are replenished. The INA (The Immigration and Nationality Act) authorizes 140,000 employment-based immigrant visas (which confer lawful permanent resident status) each year, and 480,000 family-based preference category visas (immediate family members are not capped but counted against this limit). Additionally, there is a per-country limit of 7%, meaning that individuals from one country cannot exceed 7% of the total visas issued each year. This per country cap results in exceedingly long waits in some categories such as Mexican family cases or Indian employment cases.

Now that we have reviewed the basics, below are some of the notable changes from September 2019 to October 2019.

Family Based: F-2A Remains Current

Family-Based Preference Categories: The only real noteworthy development is that F2A (spouses and minor children of LPRS) remains current across the board. This somewhat unusual window remains open, since before going current, we were seeing around 2 year waits in the F2A category. LPRs are encouraged to file for their spouses and children now, since we have no idea how long this window will remain open. Some spouses may even be eligible to concurrently file for adjustment of status if they have always maintained lawful status in the U.S. and never worked without authorization (this can be a little tricky, so we recommend you speak with a lawyer if you are considering filing a I-130 and I-485 for your spouse and/or minor child).

EB-2 and EB-3 Worldwide go Current, and EB-1 Substantially Improves

In September, all three (EB-1, EB-2 and Eb-3) worldwide categories (which excludes a handful of countries that have longer waits because they have exceeded the 7% per country cap) were retrogressed, meaning there were wait times until visas were available. In October, both EB-2 (advanced degrees) and EB-3 (bachelor degrees and skilled workers) all jumped to current.

We are still seeing an “inversion” in the EB-1 worldwide category, meaning that there remains a wait in this category, though not in the less skilled EB-2 and EB-3 categories. The wait did improve for EB-1 worldwide from a date of 10/1/17 to 4/22/18 for the final action date. The filing date improved even more from 9/1/18 to 7/1/19. This means that if USCIS authorizes the use of the filing date (which they have for employment cases in October, but did not in September), you can file for adjustment of status if your priority date is 7/1/19 or earlier in the EB-1 worldwide category. An individual who can file, but is not yet current (i.e. their priority date does not precede the final action date) still gains valuable benefits from filing; namely, they will be given employment authorization and travel permission between 3-6 months after filing and gain “portability” benefits after their I-485 has been pending for 6 months. The employment and travel permission is duplicative for some, but extremely valuable for others who do not want to maintain their underlying nonimmigrant status or do not have a dual intent nonimmigrant status. (I am getting a little into the weeds here on some technical points. I recommend speaking to a lawyer to unpack some of these benefits if confused and thinking of filing for adjustment of status).

EB-1, EB-2 and EB-3 for India

For Indian nationals unfortunately, we saw little significant movement:

• EB-1 changed from unavailable (“U”) to January 1, 2015.
• EB-2 barely moved from 05/08/09 to 5/12/09.
• EB-3 moved quite a bit from 07/01/05 to 01/01/09

The lack of significant movement in these categories (particularly EB-1 and EB-2) is frustrating, and the prognosis is not good if you review section E. of the visa bulletin for October, “Visa Availability in the Coming Months”.   

Filing Dates versus Final Action Dates

I did want to explain the two-tiered analysis related to the filing date chart. Remember, the filing date chart is a relatively recent development, where DHS and DOS decided that they will allow individuals to file for immigrant status before a visa is immediately available in anticipation of visa availability in their category in the near future. However, do not forget that you must go to this page to see if DOS and DHS are using the filing dates (i.e. allowing people to file in accordance with the filing date) in any given month. Somethings, DOS allows it if you are seeking an immigrant visa abroad through the U.S. consulate in your home country, but DHS is not using the filing date during a given month for adjustment of status cases (when a person is applying for LPR status within the U.S.) This is precisely what we saw between September and October in the employment-based categories. In September, DHS was not allowing use of the filing date for employment cases, while in October they now are. If you qualify to file for AOS during October under the filing date, things could change in November. Not only could the filing dates and final action dates change, but whether or not DHS or DOS is using the filing dates could also change. This reminds us that there are really three variables to consider with regards to when you file your case.

Conclusions

The big takeaways are that LPRs should continue to take advance of the fact that F2A is current and speak with a lawyer about filing for an immigrant visa or adjustment of status for their spouses or minor children if they have not already done so.

EB-2 and EB-3 worldwide workers are now current so should be getting ready to file for their immigrant visas or adjustment of status also. EB-1 worldwide has improved, so some individuals who were waiting may be eligible to apply now as well. Remember though, you cannot use the October Bulletin until October 1, so we are still 11 days away.

If you have any questions about these developments or other immigration related questions, we are always happy to chat with you a bit first before setting up a formal consultation. We can be reached at any of our forms throughout our website (or go to our Contact Us page here), or by phone at (303) 872-6985.