The Exhaustion of EB-1, EB-2, and EB-3 Visa Numbers in FY 2025

The close of each U.S. fiscal year often brings significant developments in the employment-based immigration landscape. For fiscal year (FY) 2025, which ends on September 30, 2025, the annual immigrant visa limits for the EB-1, EB-2, and EB-3 categories have all been exhausted. This has immediate consequences for applicants both inside and outside the United States. At the same time, there are still narrow pathways for certain applicants to file adjustment of status (Form I-485) applications in September based on the current Visa Bulletin.

1. Employment-Based Visa Numbers

Under the Immigration and Nationality Act (INA), the worldwide level of employment-based immigrant visas is capped annually, typically at 140,000 visas, with unused family-based numbers from the prior year added to this pool. Each employment-based preference category (EB-1, EB-2, EB-3, etc.) receives a fixed percentage allocation. EB-1 (priority workers), EB-2 (advanced degree and exceptional ability), and EB-3 (skilled workers, professionals, and “other workers”) categories are each allocated 28.6% of the worldwide employment-based immigrant visa total.

Per-country caps further limit how many visas applicants from a single country can use. Once a category’s allocation is reached, that preference becomes “unavailable” until the start of the next fiscal year.

2. Exhaustion of EB-2 Numbers

On September 2, 2025, the State Department announced that EB-2 numbers were fully used for FY 2025 . This means no further EB-2 immigrant visas will be issued at consulates abroad or approved through adjustment of status at USCIS until October 1, 2025, when the new fiscal year begins and a fresh allotment becomes available.

This exhaustion is significant because EB-2 is historically one of the most heavily used categories, covering a wide range of professionals, from engineers and scientists to individuals approved under the National Interest Waiver (NIW).

3. Exhaustion of EB-1 Numbers

On September 8, 2025, the State Department and USCIS confirmed that the EB-1 category also hit its annual limit. This development underscores the intense demand for EB-1 visas, particularly among applicants from oversubscribed countries such as India and China, where backlogs have been historically severe.

The EB-1 category includes multinational executives/managers, outstanding professors and researchers, and individuals of extraordinary ability. 

4. Exhaustion of EB-3 Numbers

Finally, the EB-3 category was also declared exhausted in September on September 9, 2025. This includes a range of skilled and professional roles, as well as the “EW” subcategory for unskilled labor. With EB-3 visas no longer available until the new fiscal year, U.S. employers sponsoring workers in these roles will need to wait until after October 1 to see movement again.

5. What “Unavailable” Really Means

When the State Department declares a category unavailable, this has concrete implications:

• Consular Processing: U.S. embassies and consulates will not issue immigrant visas in the unavailable category. Cases already scheduled may be postponed or held until numbers are replenished.

• Adjustment of Status (I-485): USCIS cannot approve adjustment applications in unavailable categories. Cases already pending will remain in limbo until October 1, 2025, or later if backlogs persist.

• Visa Bulletin Impact: In the monthly Visa Bulletin, unavailable categories are marked as such in the “Final Action Dates” chart.

Importantly, “unavailable” does not invalidate pending applications. Instead, those cases carry over into the new fiscal year, where they may resume processing if dates are current.

6. Filing I-485 Applications in September 2025

Despite the exhaustion of EB-1, EB-2, and EB-3 numbers, many applicants inside the U.S. still have a limited window to file their Form I-485 applications in September 2025. This is because the Visa Bulletin controls not only when cases can be approved but also when applicants are eligible to submit their applications.  USCIS has specifically confirmed that it will use the “Dates for Filing” chart for September 2025 . This means that applicants with priority dates earlier than the cutoff in that chart can still file their I-485 before the month ends, even though visas cannot be approved until October or later.

For applicants, this filing opportunity is critical. Filing in September secures a place in line and allows applicants and their families to apply for ancillary benefits such as employment authorization (EAD) and advance parole (AP).

7. Looking Ahead to FY 2026

The exhaustion of all three major employment-based categories signals continued high demand for U.S. permanent residency among professionals and workers. When the fiscal year resets on October 1, 2025, fresh allocations will become available, and some relief will occur. However, backlogs will remain, especially for oversubscribed countries.  Cutoff dates may advance slowly in the October 2025 Visa Bulletin, depending on demand.  Finally, USCIS and the State Department may adjust how quickly they move dates to avoid rapid exhaustion early in FY 2026.  It is critical that applicants plan their immigration filings early on to navigate the ever-changing immigration policy.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

A Prime Opportunity for AI Professionals to Apply for a NIW Green Card

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Now is an exceptionally favorable time for professionals with backgrounds in artificial intelligence (AI) to apply for a U.S. green card under the EB-2 National Interest Waiver (NIW) category. The convergence of several key factors underscores the urgency and strategic advantage for AI experts to pursue this opportunity.

The Importance of AI Technologies to the U.S.

AI technologies are at the forefront of innovation, driving significant advancements across multiple sectors including healthcare, finance, defense, and transportation. The U.S. recognizes AI as a critical component of its technological leadership and economic competitiveness. AI's capability to solve complex problems, enhance productivity, and foster new industries makes it indispensable. Thus, professionals who specialize in AI are highly valuable, as their expertise directly contributes to the nation's growth and security.

Maturity of AI Technologies

AI has evolved from a nascent field into a mature technology with real-world applications and robust research foundations. The current landscape is marked by sophisticated AI systems that are transforming industries and improving lives. This maturity means that AI professionals bring tangible, impactful skills to the table, making their contributions both immediate and significant. The AI revolution is real.  

Emphasis by the Biden Administration

The Biden Administration has placed a strong emphasis on AI technologies, recognizing their potential to drive innovation and maintain the U.S.'s competitive edge. In October 2023, President Biden issued an executive order focused on ensuring the safe, secure, and trustworthy development of AI technologies. This executive order not only highlights the strategic importance of AI but also signals a commitment to fostering an environment where AI innovation can thrive .

Furthermore, this executive order includes measures designed to attract and retain top global AI talent, making it easier for professionals in the field to navigate the immigration process . This alignment of policy with technological needs underscores the priority given to AI professionals and enhances the appeal of the NIW category.

National Interest Waiver (NIW) Advantage

The NIW category offers a streamlined path to permanent residency for individuals whose work is deemed to be in the national interest of the United States. Given the strategic importance of AI, professionals in this field are well-positioned to argue that their expertise benefits the nation. The NIW allows applicants to bypass the labor certification process, expediting their path to a green card.

Conclusion

With the U.S. government's clear emphasis on AI, the mature state of AI technologies, and the critical importance of these technologies to national interests, AI professionals have a unique and compelling case for applying for a green card through the NIW category. This is a pivotal moment to leverage these favorable conditions and secure a future in the U.S., contributing to one of the most dynamic and impactful fields of our time.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Breaking News - All EB1 and EB2 FY visas used up as of 09/06/2022

It has been confirmed that all employment-based visas for the First and Second Preference (EB1 and EB2) categories have been exhausted as of 09/06/2022 for this fiscal year.  Visa numbers have been used up not just for India, but for all countries.

Where is the source of this information?  It came from a Declaration by Andrew Parker, Branch Chief of the Residence and Admissibility Branch (RAB) of USCIS. The Declaration was filed with a Federal District Court in Seattle, Washington on 09/06/2022. According to Mr. Parker: 

"USCIS notes that as of September 6, 2022, there are no visas remaining for applicants from any country of chargeability in EB1 or EB2. Applicants chargeable to India in the EB2 category received at least 2,786 visas between September 1, 2022, and September 6, 2022. "

The Declaration was filed under oath as part of an ongoing litigation in a case filed by Pritish Madhavan and other plaintiffs against USCIS and DOS.  Hence, its information is inherently reliable. 

Our office has also received other anecdote accounts and case information from different sources confirming the truth of this development.  It should not come as a surprise, as the State Department has already predicted it's happening in the September Visa Bulletin.

Still, it is unfortunate for those applicants who have missed the boat, some of them have been waiting for many years for their green card.  The silver lining is that they should be in line for the new batch of visa numbers to be issued in the next fiscal year, starting on October 1st.  We hope that they will receive their green cards very soon.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Recent National Interest Waiver Decisions

The National Interest Waiver (NIW) exempts the requirement to test the job market for an employment-based application. A grant of waiver means that the foreign applicant's skills and knowledge will provide national benefits to America.  Further, an NIW petitioner may also self-petition for his/her green card without sponsorship by an employer. 

To qualify for NIW, the petitioner must be either advanced degree professionals or individuals with exceptional ability.  In 2016, the Administrative Appeals Office (AAO) revised the legal standard for NIW in Matter of Dhanasar, making it a more viable option for foreign nationals to apply for employment-based permanent resident status.  However, recent AAO decisions demonstrate that petitioners must still meet all requirements in order to obtain a national interest waiver.

The following are some AAO decisions from early 2022 regarding NIW:

Travel Management Specialist:  This petitioner in this case self-petitioned herself for a green card.  The NSC Director denied the case after determining that her profession as a "travel management specialist" is not a profession under the EB-2 visa category. On appeal, AAO remanded the case to NSC to determine if the petitioner qualifies as a person with exceptional ability.  

Linguistic Professional: This case was remanded by AAO to the NSC to determine if the petitioner qualifies for NIW as an advanced degree professional.  Contrary to the case above, the NSC Director here failed to consider whether the petitioner's bachelor's degree and subsequent work experience would qualify the petitioner as an advanced degree professional.  

Mechanical Engineer and Software Programmer:  Petitioner, an advanced degree holder, presented two IT projects with automatic functions and other sophisticated features.  Although the petitioner procured funding for his projects, he failed to prove that his IT projects could bring about national economic or other benefits that would warrant a grant of NIW. 

Cancer Biology Researcher: AAO reversed the TSC Director's denial of NIW for the petitioner.  Medical researchers, especially those who engage in cancer research, are good candidates for NIW petitions. It is unclear why TSC denied her petition initially.

Accountant:  Petitioner's appeal was rejected because she failed to prove that her accounting services would have national benefits beyond her immediate clients and locality.

Postdoctoral Research Associate:  The TSC Director failed to follow the legal framework announced by Dhanasar. Hence, AAO remanded the case to TSC for further review. 

Geology Researcher:   The petitioner's appeal was dismissed because she failed to prove that she was well positioned to advance her area of endeavor, namely, geology research.

Dentist:  Appeal dismissed because petitioner failed to prove national importance of his work.

Marketing Manager: Case was denied because petitioner failed to prove that his marketing and business administration experience in Brazil will provide national benefits to the U.S.

Nurse Supervisor:  Petitioner's profession as a nurse does not qualify as an EB-2 advanced degree professional. 

Information Technology Specialist: Petitioner had past achievements in information technology systems, but failed to demonstrate prospectively how he will provide national benefits to the U.S. in the future.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

New Guidance for Interfiling of Employment Adjustment Applications

The race between the Employment Second Preference visa category (EB-2) and the Employment Third Preference visa category (EB-3) has caused a lot of confusion and even conflicts between employers and employees.  The EB-2 category has traditionally been more advantageous for applicants, especially Indians and Chinese, in terms of the cutoff dates.  The reason is that EB-2 positions require a higher level of qualifications (generally a graduate degree or its equivalent) to apply, and fewer applicants qualify for it.  

However, over time, more applicants have become qualified for EB-2 positions through graduate studies and/or accumulation of work experience.  The result is that the cutoff dates for EB-2 also slow down at times.  For example, in October 2020's Visa Bulletin, EB-3 was faster than EB-2 in terms of Final Action Dates.  In the same month, DOS advanced the Filing Date for EB-3 India by 5 months, resulting in many I-140 visa petitions being filed to "down-grade" to the EB-3 category.  Because USCIS also allowed the use of the Filing Dates for filing the I-485 adjustment applications in the same month, many such downgraded cases were filed concurrently with the I-485 applications.  

Recently, the tides have turned again. For example, in Feb 2022's Visa Bulletin, the EB-2 cutoff dates for both India and China have become more advanced than their EB-3 counterparts.  Consequently, many applicants are trying to switch gears again by reverting to the EB-2 category.  The process has not been easy, as USCIS did not have any standard procedure for interfiling or reassigning visa categories of pending I-485 applications.  

Well, that has just changed yesterday, thanks to the Biden-Harris Administration's efforts to recruit STEM talent, when USCIS quite unexpectedly announced a policy to allow transfer of pending I-485 applications to a different EB immigrant visa category.  The purpose of the policy is to use up all available visas in the employment immigrant categories. 

Which I-485 applications are eligible for transfer to another EB visa category?

USCIS will look at the following factors to determine eligibility:

1)  The applicant must have continuously maintained eligibility for adjustment of status;

2)  The subject adjustment of status application based on the original Form I-140 is still pending;

3)  The applicant must be eligible for the new immigrant category (e.g., EB-2); and

4)   There must be a visa immediately available in the new immigrant category (based on the Visa Bulletin).

It is important to note that this new mechanism is only for transfer of I-485s between employment immigrant categories.  Transfers to or from family-based or other immigrant categories should be made through the existing regular channels. 

How can such a transfer or interfiling request be made?

The request to interfile or transfer a pending I-485 to another EB visa category must be made in writing by the applicant or his/her legal representative.  For FY 2022, USCIS has designed a specific address for making such a request.  The following designated address and point of contact is valid through 09/30/2022.  

U. S. Department of Homeland Security

USCIS Western Forms Center

10 Application Way

Montclair, CA 91763-1350

If you have already submitted such a request before in writing to another USCIS address, you should not resubmit your request again.  The USCIS office assigned to work on your I-485 application will process your request accordingly for the fiscal year.    

What documents should be submitted?

The applicant or his/her lawyer should submit the request in writing, specifically and clearly stating the request.  Supporting documents to prove eligibility must also be provided.   If the underlying I-140 petition for the visa category (e.g., EB-2) to which you are requesting to transfer has already been approved, you must also submit the Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (I-485J form). If the underlying I-140 petition is still pending, the I-485J form is not required.

The purpose of the Supplement J is to confirm the validity of the job offered to the applicant in the underlying visa petition.  

What to expect after submission?

As with previous requests, USCIS does not provide a written response to transfer requests.  However, if an I-485J supplement form is submitted, USCIS will issue receipt notices for the form.

Final Thoughts

The new policy provides a better way for interfiling requests to be made, which is good news.  However, applicants should understand that each person's situation is different, and cutoff dates may and will change in the future.  Further, USCIS has indicated that, for purposes of case portability, the 180-day clock will re-start on the day the transfer request is received by USCIS.  Hence, applicants should analyze their situation very carefully before deciding what to do. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

EB-2 vs. EB-3: Indian Nationals Should Reconsider

For many years, Indian-born immigrant visa applicants believe that filing a petition under the Second Employment visa category would give them an edge. Yes, for many years, India EB-2 was ahead of EB-3 in the monthly Visa Bulletins published by the U.S. State Department.  However, as more individuals possess advanced degrees and accumulate work experiences, the number of applicants for senior-level positions have also increased over the years, and so has the demand for visas in the EB-2 categories. For the first time ever, EB-3 India has a better cutoff date than EB-2 India in February 2019's Visas Bulletin.  See, https://myimmigrationlawyer.blogspot.com/2019/01/february-2019-visa-bulletin-family-and.html

This trend may continue in the near term.  The lesson to learn is that applicants should not insist on or "push for" filings under a particular visa category.  Applicants with advanced degrees and/or many years of experience somehow believe that they are entitled to a particular visa category.  The law is very clear - the educational and other requirements in the foreign labor application is based on the actual minimum requirements of the job opening itself, not the qualifications of the applicant.  This may seem contradictory to real-world recruiting, where employers generally try to hire the most qualified job applicants.  Unless and until the law changes, it is wise to adhere to all legal requirements rather than chasing "past performance" of the Visa Bulletin. 

Because applicants who qualify under the EB-2 visa category generally also qualify under the EB-3 category, there is mechanism for EB-2 applicants to "downgrade" their visa petitions to EB-3. This downgrading has been pursued by many Chinese applicants in the past few years to speed up their immigration process.  If India EB-3 continues to surpass India EB-2, qualified Indian applicants should also consider filing a new visa petition to downgrade their application to EB-3 to shorten the waiting time. 

DHS Proposes to Remove International Entrepeneur Rule

The Department of Homeland Security (DHS) is proposing to block foreign entrepreneurs from coming to the U.S. on parole status to create start-up businesses.  On May 29, 2018, DHS published a formal proposal to cancel the International Entrepreneur Rule (IE rule) created in 2017. 

The IE rule was originally formulated during the Obama administration. Its purpose is to encourage international entrepreneurs to start their businesses in the United States. It confers a temporary parole period of 2.5 years during which foreign investors may create and operate start-up businesses in the U.S.  The period can be extended for another 2.5 years if certain conditions are met. The purpose of the IE rule is to provide an opportunity for these new businesses to grow so that they may provide benefits to the public. 

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Now, the DHS is proposing to completely remove the IE rule. It cites reasons of lacking protection for domestic shareholders and too broad an interpretation of "parole". In its proposal to scrape the IE rule, DHS also cites other other visa categories under which international entrepreneurs may apply to bring their start-up to America. 

E-2, EB-2 and EB-5 visas are possible alternatives to the IE rule but are not framed as favorably for entrepreneurs. Each of these visas have specific requirements.  The E-2 visa is only available if a trading treaty exists between the U.S. and the foreigner's nation. The EB-2 immigrant visa has strict eligibility requirements based on education, skills, and achievement.  Further, the EB-2 immigrant visa requires sponsorship by a U.S. employer unless a "national interest waver" is obtained. The adjudication standards for such a waiver are quite high. The other issue with EB-2 is that there is a huge backlog of applicants from certain countries. Larger countries with many applicants like China and India are subject to long waiting times. Entrepreneurs taking this route would therefore face much larger competition and longer waiting times.

The employment-based fifth preference visa is actually intended for entrepreneurs, granting them and their families permanent residence if certain requirements are met.  The EB-5 requirements are investing in domestic business and creating jobs for American workers. The main difference between EB-5 and the IE rule is that the former requires the foreigner to put up with a large sum of investment capital while the latter may receive investment capital form U.S. investors. The EB-5 visa application process is also long and complicated.

The public has 30 days to provide comments to the proposal.  DHS has received thus far 13 IE applications and has not yet approved any application.  These applications may be rejected or denied on the effective date of the new rule or may be granted an opportunity to establish that the applicants are eligible for parole under the traditional parole rule, i.e., for urgent humanitarian reasons or significant public benefits. 

Provisional Certificate Accepted for EB-2 Post-Graduation Experience

A provisional graduation certificate, not the formal bachelor's graduation diploma, can be used to determine when an Indian second preference visa applicant's period of post-graduation experience begins, according to an April 17, 2017 decision by the AAO of USCIS.

The AAO held that work experience gained immediately after the issuance of an Indian provisional certificate can be counted towards the 5-year post-baccalaureate progressive experience required for the EB-2 visa petition,

To be eligible for the EB-2 visa category, an applicant is required to have earned an advanced degree or a bachelor's degree plus five years of progressive work experience. The work experience must be post graduation. In Matter of O-A-, Inc., the AAO held that 

(1) U.S. Citizenship and Immigration Services (USCIS) must conduct a case-specific analysis to determine whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree. USCIS must consider evidence presented regarding the individual nature of each university’s or college’s requirements for each program of study and each student’s completion of those requirements. and 

(2) If a petitioner establishes that, as of the date the provisional certificate was issued, the beneficiary had met all substantive requirements for the degree and that the degree was approved, USCIS will consider the date of the provisional certificate for purposes of calculating post-graduate experience

This decision has also been adopted by USCIS in a Policy Memo (PM-602-0144) issued on the same date.

The formal bachelor's diploma is usually granted many months after the provisional certificate in India.  The new policy makes it possible for Indian visa applicants to present evidence to support the use of the provisional certificates in EB-2 cases.  According to the most recent Visa Bulletin, the EB-3 visa category is almost four years behind EB-2 for Inda. 

Hold Your I-485s - October Visa Bulletin Filing Dates Changed!

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There is never a boring day practicing immigration law.  While we are getting clients ready to file their I-485s and when they are planning their trips to visit their long-missed families in their home countries, the DHS has just announced that the DOS has changed the October Visa Bulletin -  mostly the "filing date" charts.  The changes are as follows:

Family 1st Mexico:  From July 1, 1995 to April 1, 1995

Family 3rd Mexico: From Oct. 1, 1996 to May 1, 1995

Employment 2nd China: From May 1, 2014 to Jan. 1, 2013

Employment 2nd India: From July 1, 2011 to July 1, 2009
Employment 3rd and Other Workers Philippines:  From Jan. 1, 2015 to Jan. 1, 2010

As reported earlier, the October VisaBulletin provides two charts for both employment-based and family-based immigrant visa categories.  The new charts provide many benefits such as early filing of applications, which is good news for immigrant visa applicants.  

For employment categories, the changes are all backward. 

Unfortunately some applicants and their families would have to wait for the next opportunity to file their I-485 applications and the related EAD employment and AP travel applications. 

AD: Dates for Final Action

FD : Dates for Filing Applications

FAMILY		Other Countries	China	India	Mexico	Philippines
F1	AD	01/15/2008	01/15/2008	01/15/2008	11/22/1994	06/01/2001
	FD	05/01/2009	05/01/2009	05/01/2009	04/01/1995	09/01/2005
F2A	AD	04/15/2014	04/15/2014	04/15/2014	03/01/2014	04/15/2014
	FD	03/01/2015	03/01/2015	03/01/2015	03/01/2015	03/01/2015
F2B	AD	01/15/2009	01/15/2009	01/15/2009	08/01/1995	10/01/2004
	FD	07/01/2010	07/01/2010	07/01/2010	01/01/1996	01/01/2005
F3	AD	05/22/2004	05/22/2004	05/22/2004	06/08/1994	10/01/1993
	FD	04/01/2005	04/01/2005	04/01/2005	05/01/1995	08/01/1995
F4	AD	02/08/2003	02/08/2003	02/08/2003	03/22/1997	05/01/1992
	FD	02/01/2004	02/01/2004	02/01/2004	05/01/1998	01/01/1993

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

EMPLOYMENT		Other Countries	China	India	Mexico	Philippines
EB1	AD	C	C	C	C	C
	FD	C	C	C	C	C
EB2	AD	C	01/01/2012	05/01/2005	C	C
	FD	C	01/01/2013	07/01/2009	C	C
EB3	AD	08/15/2015	10/15/2011	03/08/2004	08/15/2015	01/01/2007
	FD	09/01/2015	10/01/2013	07/01/2005	09/01/2015	01/01/2010
Other Workers	AD	08/15/2015	01/01/2006	03/08/2004	08/15/2015	01/01/2007
	FD	09/01/2015	01/01/2007	07/01/2005	09/01/2015	01/01/2010
EB4	AD	C	C	C	C	C
	FD	C	C	C	C	C
EB5	AD	C	10/08/2013	C	C	C
	FD	C	05/01/2015	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)

5th: Employment Creation (Investors)