May 2023 Visa Bulletin Musings on Family and Employment Based Categories

by Alan Lee, Esq.

The May 2023 visa bulletin generally had good news for family-based cases (FB) and bad news for employment based cases (EB). A quick summary of relevant developments of final action dates and dates for filing charts revealed the following:

FB final action dates: Good news that F-3 is generally (“generally” means with exception and the author would rather use it than “rest of the world” to describe the movement in categories except where particular countries are mentioned) moving up three weeks to 12/8/08 and F-4 three weeks to 4/8/07. F-2A remains backed up at 9/8/20. FB dates for filing: F-1 moves four months and three weeks to 1/1/17, F-3 three months to 2/8/10, and F-4 1 ½ months to 2/1/08. EB final action dates: Bad news that EB-2 worldwide drops back four months to 2/15/22 and EB-3 from current to 6/1/22. Good news for China is that EB-3 moves six months to 4/1/19, EB-3W 6 months to 4/15/15, and EB-5 2 months to 9/8/15. EB dates for filing: EB-3 worldwide goes from current to 5/1/23, but China benefits moving up four months to 6/1/19.

It appears that demand for US immigration through the employment categories is increasing in many countries of the world prompting a series of warnings by the Department of State in the May bulletin:

  • China and India EB-1 are already at 2/1/22 final action dates and 6/1/22 dates for filing, and Visa Office says that the category for the two countries will “most likely” retrogress in final action dates in coming months because of increased worldwide demand. [This affects both filing and approving of cases as USCIS is only accepting the final action dates chart lately].
  • Further retrogression in the EB-2 category for the rest of the world was necessary to keep number use within the FY-2023 annual limit and the situation will be continually monitored with any necessary adjustments to be made accordingly.
  • India is facing further retrogression in EB-2 and EB-5 final action dates as early as next month to keep visa issuances within annual per country limits – that every effort will be made in October to return the final action dates to at least the final action dates announced for April.
  • Retrogression in EB-3 worldwide was necessary to hold number use within the limits with the same prognosis that the situation will be continually monitored and any necessary adjustments made accordingly.
  • EB-3W will likely retrogress worldwide in coming months.

There are of course only a finite number of immigrant visa numbers available for the preference categories annually – 226,000 for FB and 140,000 for EB cases. The forward movement of the FB categories which have been held static by the Department of State for many months is welcome to the many who have been waiting to reunite with their loved ones, but is unwelcome to those in the EB categories who have been helped in recent years by the crossover in unused FB numbers which can be used by them. The number of available visa numbers has unfortunately become a zero-sum game between FB and EB categories.

Only one fair and equitable solution is available, and that is increasing the number of visa numbers available for both FB and EB categories (FB because of the unconscionable number of years that most intending immigrants must wait to enter the US and EB because they fill areas of need in the country). Unfortunately, that is a pipe dream given the present lack of cooperation between political parties and concerns over the surge of migration at the Southwest border.

So we appear to be headed into a situation wherein FB cases will begin to be processed faster as US consulate posts bounce back to fuller capacity to set up interviews for cases, and EB cases will generally take a longer period of time to complete.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2022), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.