Family Based Green Card Spillover to Employment Based Quota

Updated Sep 24, 2021, While appropriations legislation is still pending as of July 2021, Senators Thom Tillis, Rand Paul, and Collins have introduced S. 2828, a bill to authorize USCIS to process employment-based immigrant visa applications after September 30, 2021, in order to avoid the loss of employment-based green cards for fiscal years 2020 and 2021.

USCIS is estimated to waste 80K out of 262,000 visas in FY 2021.

FISCAL YEARUSEDLimit
2018139K140K
2019140K142K
2020147K156K
2021180K(Projected)262K
2022N/A290K(Projected)
Employment Based approximate numbers

Updated July 13, 2021, The House Appropriations Committee approved the Homeland Security funding bill for fiscal year 2022 by voice vote today. The bill amends making processing faster and more efficient, as well as reducing immigration backlogs, among other things.

Along with the other amendments that were passed, there is undoubtedly bad news for the employment-based community.

Allows unused fiscal year 2020 and 2021 diversity visas, employment visas, and family-based visas to remain available in fiscal year 2022 and beyond until they are used. The amendment was adopted by voice vote.

According to Charlie’s update, 150,000 additional visas spilled over from family-based visas to the Employment Category are expected in Fiscal Year 2022, but this bill prevents the spillover to employment-based visas.

Furthermore, this bill extends to preserve the 122,000 additional visas that were already spilled over in 2021 to use beyond September 2021. This appears to be a relief, as Charlie anticipates that more than 100,000 Visas will be squandered due to USCIS processing constraints.

The amendment also includes $474.5 million for USCIS, an increase of $346.7 million above the fiscal year 2021 enacted level and $5 million above the request, including an increase of $5 million for the Citizenship and Integration Grant program.

  • Includes increases for overtime pay and additional asylum officers to further address backlogs.

Next Steps: The bill should be passed in Senate in order to take effect but the chances are slim. Democrats made the similar failed attempt and eventually spilled over in Fiscal Year 2021.

If the bill passes the Senate, there is a good chance that EB2/EB3 India will retrogress in near future.

Stop

Updated June 29, 2021, Trump’s executive order to bar immigrants from entering the country in April 2020 shed some light on the long lines in India, particularly in the EB2/EB3 category.

Fiscal Year 2021 Employment Based Visa’s – 262,000( approximately)

Fiscal Year 2022 Employment Based Visa’s – 290,000( approximately)

This is 122,000 and 150,000 more than the baseline annual limit of 140k for Employment Based visas.

Unfortunately, according to Charlie, a large number of visas may be wasted due to USCIS processing constraints. He stated that USCIS offices across the country are maximizing their processing capacity, that they are doing their best, and that every effort is being made to fully utilize all of the available numbers.

USCIS report on I-485 applications processed:

Fiscal YearQ1Q2Q3Q4Total
202127.5K17.9K29k
202041.8K18.3K12.8K48.8K121.9K
201933.2K27.5K30.4K13.7K105K
201830.4K28.3K34.5K16K109K

According to an immigration attorney, USCIS is not permitted to adjudicate cases before the start of the fourth quarter, because law requires visa numbers to be kept available for worldwide use until the fourth quarter. The number of GCs wasted may be determined by the number of cases that USCIS can adjudicate in July, August, and September of 2021.

Immigration attorney Greg Siskind is preparing a lawsuit to prevent Green Card numbers from going unused. Attorney Emily Neumann suggested contacting congressmen via email to avoid GC waste. Refer email template here. Some attorneys believe that suing over the i-485 delay will fail because courts do not have jurisdiction over these claims for a variety of reasons.

In reality, USCIS may not be prepared to take on a 122k additional toll on the spur of the moment. Furthermore, they may be unable to increase staff because they have received additional visa numbers for a one-year period, in addition to the Covid situation.

USCIS removed Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. If USCIS eliminates AOS interviews, the process may be sped up; however, interviews have been waived in some cases due to a covid situation.


Updated September 23, 2020, Trump’s executive order back in April 2020, to ban entry of immigrants, brought some light for the long waiting people in India queue especially in EB2/EB3 category.

October 1, 2020 will be the beginning of the federal fiscal year 2021, and with it, the infusion of a new allocation of immigrant visa numbers. In effect of executive order mentioned above, there are unused green cards. The question is, if unused green card numbers in the employment based categories that might spill over into the next fiscal year.

gcspillover

With the current situation to believe, this year’s employment-based visa numbers are not all going to be used up, even though there is plenty of demand mainly in India and China backlog, because USCIS cannot process them fast enough, so employment-based visa numbers are expected to be unused by the end of this fiscal year ending September 30th, 2020.

The executive order still brings favorable news, as unused family based quota in 2020 potentially spill over to Employment Based quota. The question is, how many numbers would be benefited? Expecting about 250k or more Green Cards for employment based category in 2021 fiscal year compared to 140k for the normal year and this is great news for India/China backlog as an extra 110,000 green cards available.

Still, one thing remains unknown, how that will play out with the actual movement of the dates, as it’s hard to predict until October Visa Bulletin is out.

Know the Green Card Process Flow – Explained

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