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According to U.S. Citizenship and Immigration Services (USCIS), approximately 140,000 employment-based immigrant visas are available each fiscal year for foreign nationals, their spouses and children seeking lawful permanent residence in the U.S.
The Visa Bulletin is a monthly report published by the U.S. Department of State (DOS) that identifies the five preference categories for employment-based immigrant visas and outlines who is eligible to apply for a permanent resident card (aka “green card”).
Understanding how to read the Visa Bulletin is crucial for employers and organizations directly involved with helping foreign nationals obtain a green card. Knowing how to interpret this document can significantly impact the application process and help with maintaining workforce continuity.
The employer’s guide to reading the Visa Bulletin covers the following:
Intended as a foundational reference for immigration professionals supporting their organizations — especially those new to understanding the employer-sponsored green card process — this guide provides clarity to help employers and global talent achieve employee immigration and business performance goals.*
Each Visa Bulletin contains statutory language and current information on preference categories, diversity visas and U.S. government employee special immigrant visas. The Visa Bulletin is released around two to three weeks ahead of the month it is in effect. For example, if it is May, DOS will already have released the May Visa Bulletin and will release the June Visa Bulletin in the middle of May.
The two primary sections of the Bulletin concern preference immigrant visas — employment-based preferences and family-based preferences. Family-based visas are intended for individuals with immediate relatives who are U.S. citizens or lawful permanent residents. Most employment-based visas are subject to employer sponsorship, as they are intended for foreign nationals who have job offers from U.S. employers and who meet specific skills, education and experience qualifications. Any unused family-based visas allotted for the fiscal year are added to the number of available employment-based visas. This guide focuses on the employment-based preferences section of the Visa Bulletin.
There are five employment-based preference categories outlined in the Visa Bulletin. USCIS defines these categories as follows:
First Preference (EB-1): Reserved for persons of extraordinary ability in the sciences, arts, education, business or athletics, including outstanding professors or researchers and certain multinational executives and managers.
Second Preference (EB-2): Reserved for persons who are members of professions holding advanced degrees or for persons with exceptional ability in the arts, sciences or business.
Third Preference (EB-3): Reserved for professionals, skilled workers and other workers.
Fourth Preference (EB-4): Reserved for “special immigrants,” including but not limited to certain religious workers, employees of U.S. foreign service posts and retired employees of international organizations.
Fifth Preference (EB-5): Reserved for business investors who invest $1,050,000 or $800,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.
Employers typically must obtain a U.S. Department of Labor (DOL) approved labor certification for the EB-2 and EB-3 preference categories. The labor certification satisfies two DOL regulatory criteria: 1) that there are insufficient U.S. workers who are available, qualified, willing and able to fill the offered position at the prevailing wage rate or higher; and 2) hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The priority date signals the date when the petition is filed with USCIS or the date when the application for a labor certification (“PERM”) is submitted. The Visa Bulletin indicates which priority dates are currently being processed and determines the applicant’s eligibility to move forward in the visa application process, influencing wait times and determining adjustment of status or when a visa may be issued. Employment-based category wait times can vary, with some classifications experiencing longer backlogs than others, depending on country of chargeability/birth and preference categories.
The priority date (an example is highlighted in the image below) can be found on the Form I-797, Approval Notice received from USCIS after the Immigrant Petition for Alien Worker (“Form I-140”) has been submitted. For labor certifications, the priority date can be found on the DOL labor certification (“PERM”) itself.
The Visa Bulletin splits eligibility for filing a lawful permanent residence application and adjudication into two tables for employment-based preferences (family-based preferences are also divided into these two tables):
1. Final Action Dates — Indicate who is eligible for final action (adjudication) on their permanent residence application and when a visa can be issued.
2. Dates for Filing — Indicate who is eligible to submit their application and supporting documents for further processing, even if the green card itself is not available. For U.S. applicants, USCIS may use the Final Action Dates to determine eligibility to file the adjustment of status application.
Not all applicants are eligible to file based on these dates. Eligibility depends on the specific visa category, chargeability area (the applicant’s country of birth or spouse’s country of birth — called “cross chargeability”) and the applicant’s priority date. Once the Visa Bulletin is published, USCIS will indicate on the Adjustment of Status Filing Charts from the Visa Bulletin page which chart (Final Action Dates or Dates for Filing) to use.
If immigrant visa availability for the fiscal year exceeds the number of applicants, USCIS will accept applications filed by applicants who are “current” under the Dates for Filing table. Otherwise, USCIS will use the Final Action Dates table to determine eligibility for filing the adjustment of status application. A priority date is considered current (signified by “C” on the chart) if the applicant’s priority date is earlier than the date listed in the appropriate table for the applicant’s preference category and country of birth, and the applicant is considered eligible to proceed with applying for a visa or adjusting their status.
However, if an applicant’s priority date will be current under the Dates for Filing table in the following month’s Visa Bulletin, but not current under the Final Action Dates table, the applicant must wait until USCIS makes its separate announcement of which table it will use to determine eligibility. For example, if an applicant whose country of birth is India has a priority date of June 27, 2020, under EB-2, based on the charts below they are not eligible to file under the Final Action Dates or Dates for Filing, as their priority date is after the dates listed on the chart.
To illustrate how to interpret the data from the respective charts, below is a sample from the January 2020 Visa Bulletin.
Final Action Dates for Employment-Based Preference Cases (January 2020)
Dates for Filing Employment-Based Visa Applications (January 2020)
In each table, the first column lists the different employment-based preference categories. The remaining columns list the different chargeability areas and provide the priority date cutoffs for the preference category and chargeability area. Each category may advance at different rates, meaning that some visa categories will have earlier dates than others.
When reading the Visa Bulletin, focus on the column that corresponds to the applicant’s visa category and country of chargeability. Formally speaking, chargeability refers to the rule that each foreign national applying for permanent residence must be “charged” or assigned to a foreign state for the purposes of determining whether certain immigrant visa numerical limitations under the Immigration and Nationality Act (INA) apply. A foreign national is typically charged to the country of their birth. Additionally, an applicant may be able to use their spouse’s country of birth — called “cross chargeability” — if the spouse is filing the adjustment of application as a derivative.
Under the INA, there are per-country limitations on the number of employment-based green cards that can be issued per year from the total 140,000 allotment. India, China, Mexico, Guatemala, Honduras, El Salvador and the Philippines have historically exceeded their statutory limit (“oversubscribed”), resulting in increasing backlogs that have multiplied the number of years before an employment-based green card may be issued for each applicant from that respective country. Significant changes in immigration policies with changing presidential administrations have also contributed to backlogs.
When the Visa Bulletin shows a priority date cutoff (signified by “U”), this means that immigrant visas are temporarily unavailable to all applicants in that particular preference category and chargeability country. The priority date cutoffs on Visa Bulletins typically move forward in time. However, “retrogression” can occur when the demand for immigrant visas fluctuates from month to month and may cause the progression of cutoff dates to slow, stop or move backward in time.
When more applicants apply for an immigrant visa in a specific preference category or from a specific country of birth than there are available immigrant visas, the visa preference category may retrogress in the following month’s Visa Bulletin and, ultimately, compound backlogs and further delay an applicant in receiving lawful permanent residence. Other contributing factors to retrogression may include a higher than expected number of visa applications and changes in immigration policy.
There are several common misconceptions about the Visa Bulletin charts. One of the most prevalent is that the dates listed are guarantees of visa issuance. Considering factors like retrogression, in actuality the dates are fluid and can change from month to month based on demand and processing capacity. Another misconception is that applicants should focus only on the Final Action Dates; however, USCIS declares which charts to use on a month-to-month basis and should be monitored regularly for timeline planning.
Understanding the Visa Bulletin can help employers incorporate strategic contingency planning to meet the immigration needs of their global talent pool and proactively address potential visa-related challenges to ensure business continuity. Clear and consistent communication with stakeholders, including foreign national employees, human resources, mobility professionals and legal counsel, is essential to address and adapt to processing timelines and maintain program stability and alignment with business goals in a challenging immigration environment.
For example, if employees with EB-2 or EB-3 status are running into extended delays (retrogression in the Visa Bulletin) because of their country affiliation or other factors, with the help of experienced counsel program stakeholders can develop workarounds to minimize workforce disruption. This approach not only mitigates risks but also fosters a more transparent and supportive work environment.
To stay informed, applicants should regularly check the Visa Bulletin, DOS resource pages and USCIS for the latest information. Additionally, following reputable immigration news sources and subscribing to updates from leading immigration law firms, such as BAL, can provide valuable insights and help with navigating complex visa processes.
For specific insights and updates on the Visa Bulletin in fiscal year 2025 and how your program can adapt to its impact, watch the free BAL Community Visa Bulletin Workshop.
* The information provided in this article is for general informational purposes only and is not intended to be legal advice. While we strive to ensure the accuracy and completeness of the information, we make no guarantees regarding its applicability to your specific situation.
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Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
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This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.