Congress by law allocates 140,000 employment-based immigrant visas annually for foreign nationals. However, due to other legal provisions, the actual number of available employment-based immigrant visa numbers fluctuate from year to year.
For example, due to the pandemic, the EB-based visa numbers were increased substantially. According to the Department of Sate, the EB-based visa numbers were 281,507 for the FY 2022 - more than double the typical annual total - due to unused family-based visa numbers from FY 2021 being allocated to the next fiscal year's available EB-based visas. Unused family-based immigrant visa numbers can be used for employment-based categories by law. Most of the family-based immigrants apply for their visas in overseas countries. During COVID-19, many overseas American Embassies and Consulates were closed for business, drastically reducing the issuance of family-based immigrant visas. This resulted in substantial numbers of unused family-based visas, which were transferred to employment-based cases. By the end of the fiscal year on Sept. 30, 2022, the agencies were to able to use up all of these EB-based immigrant visas. A majority of these visa numbers (220,000) were allocated to applicants in the United States through the Adjustment of Status process.
This trend continued in FY 2023. According to DOS, the FY 2023 employment-based annual limit was increased to 197,091, after capturing the unused family-based visa numbers from FY 2022. Of these visa numbers, 145,000 were used domestically by applicants who filed the I-485 Application to Adjust Status.
USCIS and DOS have also provided estimates regarding the number of available employment-based immigrant visa numbers for FY 2024. DOS currently estimates that the FY 2024 employment-based annual limit will be reduced to approximately 161,000. Some unused family-sponsored visa numbers from FY 2023 will still be added to the employment-based limit for FY 2024. However, the extent will be less than previous years.
Beginning 10/01/2023, the start of fiscal year 2024, DOS began to allocate EB-based visa numbers from the estimated limit of 161,000. The changes are reflected in the October 2023 Visa Bulletin, which advancements of cutoff dates in many EB-based visa categories. Every Final Action Date in the Visa Bulletin has advanced from its level in September 2023 (or remained the same).
Still, the cutoff dates in some categories (e.g., EB-2 and EB-3 India) in the October 2023 Visa Bulletin have not advanced sufficiently to allow new applications. The reason is that, USCIS and DOS already have a significant number of pending EB-based adjustment of status and immigrant visa applications in their inventories. Both agencies already have sufficient number of pending applications to use up all the available visas for FY 2024 and beyond. As a result, by law, DOS was not able to advance the dates in the Visa Bulletin to allow additional EB-based visa applications to be filed.
In general, as the impact of COVID-19 subsides, the number of EB-based visa numbers will be normalized. As the overseas Consulates reopen and resume normal operations following the pandemic, fewer unused family based immigrant visa numbers are carrying over to increase the number of available EB-based immigrant visas. According to DOS, once there are no more unused family-based numbers, the annual number of available EB-based immigrant visas should gradually return to 140,000.
This limit of 140,000 was established by Congress more than three decades ago. It has been insufficient to meet the demand for EB-based immigrant visas in many visa categories, especially for applicants born in India and China. For example, in December 2023's Visa Bulletin, within EB-1, all countries, except India and China, are current. For EB-2, all countries' Final Action Dates are not "current". EB-2 China's and India's cutoff dates are respectively 01/01/2020 and 05/15/2012. The EB-3 categories are equally backlogged. Changes in law are unlikely in the near future, given the current partisan political situation in Congress. EB-based visa applicants would have to wait longer for their green cards.
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