August 2023 Visa Bulletin - Retrogression Nightmare

On July 7th, the Department of State (DOS) published the August 2023 Visa Bulletin, announcing bad news in terms of immigrant visa (IV) availability, with significant visa retrogression for employment-based first preference (EB-1) IVs for India and worldwide retrogression of employment-based third preference (EB-3) IVs. Visa retrogression occurs when more people apply for a visa in a particular EB category or from a particular country than there are visas available for that month, as described in more detail below.

The Immigration and Nationality Act (INA) established the annual number of family- and employment-based (EB) IVs. Under INA §201, there are 140,000 IVs available each year for EB immigration. This number is further reduced by the per-country limitations established under INA§202, which states that no more than 7% of the IVs issued per year can go to any one country. In essence each country is allocated no more than 7% of the annual EB IVs or 25,620 per year. Once a country reaches that limit it is considered “over-subscribed” and IVs become unavailable or “retrogressed”.

Although the world has changed significantly since 1990 (more than 30 years ago) when these IVs and per country limitations were established, and the demand for IVs has far-exceeded their availability, Congress has not amended the INA to accommodate this need. This in turn, has led to our current situation where people are waiting more than 10 years to legally obtain their permanent resident status. (The wait is even longer for some family-based IV categories.)

For example, the August 2023 Visa Bulletin reflects a retrogression of 10 years for EB-1 IVs for Indian nationals. In July 2023, EB-1 IVs were available for Indian nationals with a priority date of February 1, 2022. As of August 1, 2023, EB-1 IVs will only be available for Indian nationals with a priority date of January 1, 2012. The DOS states that this has occurred because:

India is oversubscribed, and therefore subject to prorating under INA 202(e).  Until now, applicants chargeable to India had been able to receive prior unused numbers within EB-1 under INA 202(a)(5).  With a worldwide final action date being set for EB-1 because the demand is greater than the number of visas remaining, the Department can no longer issue EB-1 visas without regard to the per-country numerical limitations and so applicants from India are no longer able to receive EB-1 numbers under INA 202(a)(5).  Having reached their limit for FY-2023 within EB-1, India will be subject to an EB-1 final action date of 01JAN12, the oldest priority date of an EB-1 applicant (many Indian EB-1 applicants have priority dates from 2012-2015 because of priority date retention based on previously-approved petitions in the EB-2 or EB-3 categories).

According to the DOS, EB-1 IVs for Indian nationals may progress in October 2023 (which is the start of the new fiscal year), however, this is dependent on: (a) the demand for EB-1 visas for Indian nationals and (b) the 2024 fiscal year annual limit on EB visas.

For many EB immigrants and their employers, families and immigration counsel, the monthly Visa Bulletin is often met with significant anxiety. Where it brings joy, it is often limited to a very short period of time — 30 to 60 days — and more often than not, it delivers bad news by extending the length of time foreign nationals have to wait to obtain their lawful permanent residence. In many instances, the time that it takes for IVs to become available greatly exceeds how long immigrants can remain in the U.S. and maintain their lawful status (because each nonimmigrant visa classification also has a maximum period of stay).

With immigration, nearly everyone has an opinion and I often hear or read statements that “I support immigration if people do it like my parents/grand parents/great grand parents did it” or “people should just wait in line like my family did” or “I only support legal immigration”.

Well, I have news for you: this immigration system isn’t your parents, grand parents or great grand parents immigration system. Many of the people who make such claims can trace their family’s immigration to the U.S. back to the 1800s (1830s to 1890s) when more than approximately 15 million people, mostly from Europe, immigrated to the U.S. There were no quotas and no wait times then. If you could afford to get on a ship, survive the the terrible trip to the U.S., and pass the physical examination, you were permitted to enter the U.S. as an immigrant.

Leaving aside some of the exclusionary laws passed by Congress (the Chinese Exclusion Act), the U.S. did not pass a quota-based immigration system until the Emergency Quota Act of 1921. Such restrictions have continued to date, causing a significant backlog and delay in the process to become a permanent resident. Today, foreign nationals may wait more than 10 years to become a permanent resident based on employment.

The people who claim that they only support immigration if foreign nationals wait like their parents/grand parents/great grand parents are simply disingenuous because their families did not have to wait 10 or more years. As a nation, we are known for our desire or need for instant gratification. Look at the number of fights that happen because people have to wait in any line (traffic, airport, groceries, etc.). Would the average person in the U.S. wait 10 years to obtain a driver’s license? How about a passport? How about permission to travel abroad.

Here’s a different way to think about it: How would you feel if you completed all of your course work for a college degree and graduated after 4 years, but were told that you had to keep paying to “maintain your student status” for the additional 6 years that it would take to get your actual diploma because Congress established a quota on how much diploma paper could be printed each year. And because of the backlog of people waiting for their diplomas before you, it may take an additional 7 years before you could receive your diploma. You need this diploma to get a decent job, paying a livable wage, but it may take you 13 years before you receive the actual diploma — not because you did anything wrong, but because the demand for diploma paper far exceeds the supply.

Your prospective employers don’t understand why you just can’t get your diploma the way their parents and grand parents did. Sounds familiar right? Except you won’t face deportation or the possibility of being separated from your family and community. Does this seem fair or equitable to you? Most likely not.

Congress really needs to do better by the thousands of foreign nationals who meaningfully contribute to our country. We need a reformed immigration system that allows our EB IVs to become lawful permanent residents faster and more efficiently.