Benjamin Brueggemann, Senior Supervising Attorney
As of the January 2021 Visa Bulletin, USCIS opted to flip the script and move forward with adjustment of status filings using the Final Action Date Chart, rather than the Filing Date Chart as they have done since the beginning of the new Fiscal Year, which started October 2020.
For employment-based cases, USCIS has, historically, always used the Filing Date Chart at the beginning of the fiscal year and then gradually switched to using the Final Action Date chart for adjustment of status filings. Although this is not a new concept, the timing of when USCIS chooses the Final Action Date chart over the Filing Date chart is always different.
With a record number of available visas in the employment-based categories, there remained hope that USCIS would continue the forward movement in the Filing Date Chart to allow more adjustment of status filings in the new fiscal year. However, this has not happened. With USCIS now flipping to the Final Action Date Chart, they seemingly retrogressed the visa cut off dates for adjustment of status filings. This is because the Final Action Date chart has visa cut off dates that are earlier in time than the Filing Date Chart. Essentially, this is a retrogression in cut off dates due to USCIS guidance confirming the use of the Final Action Date Chart.
The February 2021 Visa Bulletin reflects no major forward movements in the major employment-based categories, EB-2 and EB-3. Specifically, for India, the EB-2 priority date moved forward by four days from October 8th, 2009 to October 12th, 2009. The EB-3 category cut off dates moved forward by about eight days from March 22nd, 2010 to April 1st, 2010. This movement is more reflective of fiscal year 2020 forward movements, wherein there was just minimal forward movement. The only bright spot in the February 2021 Visa Bulletin is the forward movement of the priority dates in the EB-1 category. For India and China, the dates advanced by 4 months from September 1st, 2019 to January 1st, 2020.
The U.S. Department of State determines the visa cut off dates based on adjustment of status adjudication reports received from USCIS, as well as their own reports on visa issuance at the consulates around the world. It should remain relevant that the February 2021 visa bulletin is based on reported priority dates for demand received by January 11th, 2021. This is significant because this means that the February 2021 visa bulletin is based on reports generated by the Trump administration, rather than the incoming Biden Administration. The March Visa Bulletin will hopefully shed light on further predictions based on the Biden Administration’s reports to the U.S. Department of State.
It should be noted that visa availability numbers in the employment-based preference categories are at an all-time high for Fiscal Year 2021. The U.S. Department of State announced that 261,500 visas were available this year, as opposed to the regular allotment of 140,000 visas. This is an increase of 120,000 visas. This was welcomed news in October 2020. As we are approaching February 2021, we ask ourselves, where are all these visa numbers? We have not seen an uptick in the number of adjudications of adjustment of status applications at USCIS, nor have we seen an uptick in the number of green card approvals at the consulates, many of which remain closed for immigrant visa processing.
It is hard to predict the number of immigrant visas adjudicated by the government. Visa numbers are being used by two separate departments. On the one hand, you have the U.S. Department of State, which adjudicates immigrant visas at its U.S. consulates and embassies around the world. On the other hand, you have the U.S. Department of Homeland Security, which adjudicates immigrant visas through the adjustment of status application filings with U.S. Citizenship and Immigration Services (USCIS) for Applicant’s within the U.S. The difficulty is that USCIS does not publish visa number adjudications as frequently and as consistently as the U.S. Department of State.
According to the U.S. Department of State’s Monthly Immigrant Visa Issuance Statistics, the following visa numbers, in both the family-based and employment-based visa categories, have been issued from October 2020 to December 2020, the first quarter of Fiscal Year 2021:
| Month | Visa Issuance Numbers |
| October 2020 | 8,687 |
| November 2020 | 10,138 |
| December 2020 | 11,233 |
| TOTAL Quarter 1 Fiscal Year 2021 | 30,058 |
**total immigrant visa number issuance in both the employment-based and family-based categories
The U.S. Department of State issued a total of 30,085 immigrant visas in the first quarter of Fiscal Year 2021. Only a percentage of those are attributed to the total of 261,500 employment-based immigrant visas.
The number of immigrant visas used by USCIS is unavailable at this time because USCIS has not published official numbers of adjudication for the first quarter of fiscal year 2021. The most up to date numbers of immigrant visa issuance by USCIS date back to the first three Quarters of fiscal year 2020. In three quarters, USCIS used 73,093 visas for the adjudication of adjustment of status applications in the employment-based category. This is an average of close to 25,000 per quarter. Surely, this number must significantly increase for fiscal year 2021. If it does not, the high number of available immigrant visa number will not be used during this fiscal year.
The next three quarters of Fiscal Year 2021 will be crucial in adjudication of immigrant visas, as there seems to be a large number of visa numbers still available of the 261,500 employment-based immigrant visas. We are anxiously awaiting the March 2021 visa bulletin which could result in forward movement of the Final Action Date chart thereby increasing the adjudication of pending adjustment of status applications with USCIS.
Please contact Global Immigration Partners at inquiries@gip-us.com for any questions related to this article.