United States: USCIS Processing Of Employment-Based Green Card Applications In Fiscal Year 2022 And Beyond

The Department of State (DOS) estimates that the employment-based annual visa limit for fiscal year (FY) 2022 will reach a record high of 280,000. This is double the typical annual total of 140,000, and significantly more than the 262,288 employment-based visas available in FY 2021, of which 66,781 went unused due to processing delays. Despite the unprecedented number of employment-based visas available in FY 2022 due to processing backlogs and ongoing capacity challenges stemming from the COVID-19 pandemic, DOS and the U.S. Citizenship and Immigration Services (USCIS) affirm that they are aggressively processing employment-based immigrant visas (green cards) ahead of the end of the fiscal year on September 30, 2022.¹ The recent policy changes, commitments, and trends for green card processing may assist many green card applicants this year, however, many others still remain trapped in the long employment-based processing queues.

Under the provisions of U.S. immigration law, a total of 140,000 green cards are made available each fiscal year for qualified applicants under the employment-based immigration categories.² At least an additional 226,000 family-based green cards are available annually. If the total number of visas allocated to the family-based immigration categories are not used, however, the excess number of family-based visas are then made available in the employment-based category.³ Unfortunately, there is no such provision for the use of surplus employment-based visas in subsequent years, and any employment-based visas that are not made available to applicants are simply lost at the end of the fiscal year. At the end of FY 2021, despite the combined processing efforts of DOS and USCIS, 66,781 visas were lost, leading to much frustration for many applicants.⁴

The vast majority of applicants in the employment-based categories pursue a green card through the USCIS's adjustment of status (AOS) application process rather than through consular processing abroad with the DOS.⁵ Therefore, USCIS's actions will have a profound impact on the number of employment-based visas adjudicated each fiscal year. The agency admits that they still face a number of challenges but remain committed to taking any necessary policy and procedural actions to meet their goal of adjudicating as many visas as possible before the end of FY 2022. USCIS has recently launched a number of initiatives, including a new hiring plan, redistributing applications across service centers to balance available resources, and formalizing the process for transferring pending AOS applications to other employment-based categories. USCIS has also instituted a number of temporary policies, including waiving requirements surrounding Form I-693 medical examinations, launching a biometrics re-use program, and applying a risk-based approach to the scheduling of employment-based interviews for AOS applicants.⁶ As the end of FY 2022 draws near, USCIS may continue to issue additional policy changes to facilitate the adjudication of employment-based adjustment applications in furtherance of their commitments.

DOS estimated that the FY 2022 employment-based annual limit would be approximately 280,000 due to unused family-based visa numbers from FY 2021. USCIS recently announced that their office, in conjunction with the DOS, had already used significantly more visas than at the same point in FY 2021. As of June 30, 2022, the DOS and USCIS have issued a combined total of 176,281 employment-based visas, which leaves just over 100,000 visas remaining to adjudicate by the end of FY 2022.⁷ Despite this reassuring progress, there are still causes for concern. At the start of FY 2023, the per country annual visa limits will again be re-set, as excess employment-based visas do not carry over to subsequent years and USCIS has not yet indicated if additional employment-based visa numbers would be available in FY 2023 and beyond.

While the recent trend towards streamlining USCIS processing of employment-based green-card applications is certainly a step towards providing relief, but even if USCIS and DOS succeed in issuing the full number of available visas this fiscal year, many others caught in the long processing queues will still be left waiting. In a recent national survey of U.S. employers, the majority approved of the current handling of employment-based immigration but asserted that reforms may be needed, with reforms to the green card process in particular ranking high on the list of improvements.⁸ In June 2022, the House of Representatives' Appropriations Committee passed an amendment from Reps. Meng (D-NY), Pocan (D-WI), Espaillat (D-NY), and Torres (D-CA) to the FY 2023 Department of Homeland Security Appropriations Act that would recapture unused family and employment-based immigrant visa numbers lost due to processing delays since 1992 and make them available to immigrants currently stuck in long backlogs.⁹ The amended legislation was subsequently passed by the Appropriations Committee and is pending before the full House. While similar attempts to restore unused visa numbers have been unsuccessful in the past, and it is still unclear whether this amendment will succeed given opposition in the Senate, such action could potentially benefit tens of thousands of individuals currently stuck in the backlog. As the demand for qualified workers in the wake of the COVID-19 pandemic remains high and green card processing is critical for employers to retain foreign-based talent, if the frustrations with the current system continue to mount and the long processing queues continue, there may be increased pressure for legislative action to finally bring relief to applicants. Given partisan battles over the appropriations bills in past years and that this is an election year, we do not anticipate final legislation being passed and enacted until late this calendar year.

Footnotes

1 U.S. Citizenship and Immigration Services. "Fiscal Year 2022 Employment-Based Adjustment of Status FAQs." https://www.uscis.gov/green-card/green-card-processes-and-procedures/fiscal-year-2022-employment-based-adjustment-of-status-faqs.

2 U.S. Department of State. "Employment-Based Immigrant Visas." https://travel.state.gov/content/travel/en/us-visas/immigrate/employment-based-immigrant-visas.html#numerical.

3 Robert S. White. "United States: Record Number Of Green Cards Available In 2022." Mondaq. November 10, 2021: https://www.mondaq.com/unitedstates/work-visas/1130028/record-number-of-green-cards-available-in-2022.

4 U.S. Citizenship and Immigration Services. "Fiscal Year 2022 Employment-Based Adjustment of Status FAQs." https://www.uscis.gov/green-card/green-card-processes-and-procedures/fiscal-year-2022-employment-based-adjustment-of-status-faqs.

5 U.S. Citizenship and Immigration Services. "Employment-Based Visas." [Infographic]: https://www.uscis.gov/sites/default/files/document/guides/Excess_EB_Visas_Infographic.pdf

6 U.S. Citizenship and Immigration Services. "Fiscal Year 2022 Employment-Based Adjustment of Status FAQs." https://www.uscis.gov/green-card/green-card-processes-and-procedures/fiscal-year-2022-employment-based-adjustment-of-status-faqs.

7 Id.

8 Lucy Halse. "United States: Immigration Trends 2022: Employment-Based Immigration Needs Reform." Mondaq. July 7, 2022: https://www.mondaq.com/unitedstates/work-visas/1209786/immigration-trends-2022-employment-based-immigration-needs-reform.

9 Ellen M. Gilmer and Andrew Kreighbaum. "Decades' Worth of Unused Immigrant Visas Salvaged in House Bill." Bloomberg Government. June 24, 2022: https://about.bgov.com/news/decades-worth-of-unused-immigrant-visas-salvaged-in-house-bill.

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