[Federal Register Volume 88, Number 59 (Tuesday, March 28, 2023)]

[Rules and Regulations]

[Pages 18252-18253]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2023-06252]



22 CFR Chapter I

[Public Notice 11985]

RIN 1400-ZA27

Employment-Based Preference Immigrant Visa Final Action Dates and 

Dates for Filing for El Salvador, Guatemala, and Honduras

AGENCY: Department of State.

ACTION: Interpretation of certain statutory provisions.


SUMMARY: The Department of State (``Department'') is issuing this 

document to state its interpretation of certain provisions in the 

Immigration and Nationality Act (INA) regarding the availability of 

immigrant visa numbers in categories subject to an annual numerical 

limit. To ensure that Department practice is consistent with these INA 

provisions, future Visa Bulletins, beginning with the April 2023 Visa 

Bulletin, will reflect this interpretation with respect to the 

availability of employment-based preference visas for applicants from 

the Northern Central American countries of El Salvador, Guatemala, and 

Honduras (``NCA Countries'').

DATES: March 28, 2023.

FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory 

Coordinator, Visa Services, Bureau of Consular Affairs, 600 19th Street 

NW, Washington, DC 20522, 202-485-7586, VisaRegs@state.gov.


  1. Background

Applicants for immigrant visas subject to numerical limitations 

prescribed in sections 201-203 of the INA, 8 U.S.C. 1151-1153, are 

generally chargeable to their country of birth. INA 203(e), 8 U.S.C. 

1153(e), governs the order in which immigrant visas in the family-

sponsored and employment-based preference categories under INA 203(a)-

(b), 8 U.S.C. 1153(a)-(b), respectively, are allocated, and requires 

that visas in these categories be made available in the order in which 

the associated petition is filed.

INA 202(a)(2), 8 U.S.C. 1152(a)(2), imposes a ``per country'' limit 

of seven (7) percent of the total number of available family-sponsored 

and employment-based preference immigrant visas each fiscal year to 

nationals of individual foreign states. If the Department determines 

that preference visa issuances to nationals of a particular country 

will exceed the per-country limit, that country is identified in the 

Visa Bulletin as ``oversubscribed'' and INA 202(e), 8 U.S.C. 1152(e), 

requires that visas in each preference category must be pro-rated to 

ensure distribution across all preference categories. Individual 

family-sponsored and employment-based preference categories are also 

deemed ``oversubscribed'' when worldwide demand exceeds the number of 

immigrant visas available in those categories. Final action dates are 

listed in the Visa Bulletin when countries and visa categories are 

oversubscribed, and immigrant visas in categories with final action 

dates are available only to applicants with priority dates earlier than 

the listed final action date.

The EB-4 category consists of special immigrants as defined in the 

INA, including certain religious workers, certain current and former 

U.S. Government employees abroad, certain officers and employees of 

international organizations, and certain special

[[Page 18253]]

immigrant juveniles (SIJs). See sections 203(b)(4) and 101(a)(27) of 

the INA, 8 U.S.C. 1153(b)(4), 1101(a)(27).

  1. Discussion of the Change Reflected in the April 2023 Visa Bulletin

The Department seeks to clarify that the INA permits prorated 

allocation of available visas within an employment-based preference 

category to nationals from an individual country only when family-

sponsored and employment-based preference visa demand from that country 

will exceed its per-country limit under INA section 202(a)(2), 8 U.S.C. 

1152(a)(2). Consistent with this interpretation, the Department is no 

longer assigning separate final action and filing dates for individuals 

chargeable to any of the NCA Countries in the EB-4 category and 

individuals chargeable to these three countries are now subject to the 

dates in the column headed ``All Chargeability Areas Except Those 

Listed'' (referred to herein as ``ROW,'' meaning the rest of the 

world). The Department is required to make this change to bring 

Department practice, as reflected in the Visa Bulletin, into compliance 

with these INA provisions. As a result of this change, there is no 

longer a need for a separate column for the NCA Countries in the 

employment-based preference ``Final Action Dates'' and ``Dates for 

Filing'' charts in the Visa Bulletin.

Specifically, INA 202(a), 8 U.S.C. 1152(a), makes clear that the 

per-country limit, which is implemented by setting final action dates 

for a country in the Visa Bulletin, is triggered only when preference 

immigrant visa demand from a country will exceed seven percent of the 

total number of preference visas made available in INA section 203(a)-

(b), 8 U.S.C. 1153(a)-(b); that is, seven percent of the total number 

available for all family-sponsored and employment-based preference 

immigrant visas available worldwide.

This change corrects misapplication of the law in prior Visa 

Bulletins, beginning with the May 2016 Visa Bulletin, which added a 

separate column to the ``Final Action Dates for Employment-Based 

Preference Cases'' table, showing that EB-4 applicants chargeable to 

the NCA Countries were assigned an EB-4 final action date separate from 

the ROW column and these three countries were listed as 

``oversubscribed'' and subject to the pro-rating provision at INA 

202(e)(3), 8 U.S.C. 1152(e)(3). The May 2016 Visa Bulletin explained 

that ``extremely high demand'' in the EB-4 category (including the EB-4 

subcategory for Certain Religious Workers (SR)) for applicants from the 

NCA Countries required implementation of final action dates in the EB-4 

category for these countries. EB-4 final action dates were thus 

established for these three countries since May 2016 based on their 

high demand for EB-4 visas. The same approach was reflected in 

subsequent Visa Bulletins and in the corresponding table with ``Dates 

for Filing of Employment-Based Visa Applications,'' beginning with the 

October 2017 Visa Bulletin. However, that contravenes the Department's 

current interpretation of the statutory prerequisite for when a country 

can be deemed oversubscribed and allocation of preference visas can be 

pro-rated: that the INA provision on pro-rating is based on a country's 

demand for more than seven percent of all preference visas, not one 


As none of the NCA Countries are expected to exceed the per-country 

limit under INA 202(a)(2), 8 U.S.C. 1152(a)(2), there is no basis under 

the INA to set final action dates and dates for filing for employment-

based preference visas that are specific to those countries.

Julie Stufft,

Deputy Assistant Secretary for Visa Services, Bureau of Consular 

Affairs, Department of State.

[FR Doc. 2023-06252 Filed 3-27-23; 8:45 am]