The USCIS recently posted updated processesand procedures for green card cases filed during Fiscal Year 2023 (FY2023)which ends on September 30, 2023.  Belowis a short summary of the key issues regarding the coming fiscal year’s greencard cases.

The US Department of State estimates the annual allotment ofemployment-based green cards will be approximately 200,000 due to unusedfamily-based visa numbers from FY 2022 (ending September 30, 2022).  Please see our previousblog post for an explanation of the unused family-based numbers flowinginto the employment-based category.  Eachyear there are 140,000 green cards allocated for employment-based cases bystatute; the coming year’s allotment of 200,000 is a large increase inavailable green cards.

Q: If there is an increase in available green cards, why have theIndian EB2 numbers retrogressed in October 2022?

A: The DOS and USCIS estimate the annual usage of green cardsbased on the number of pending applications. When estimating how many green cards will be approved, the DOS and USCISconsider the following factors:

  • A percentage of the pending applications will not be approvedfor a variety of reasons;
  • An accounting for applicants who have more than one green cardapplication pending;
  • An estimate of the number of dependents who will be included onthe   application; and
  • How far along in the application process the pending cases are,e.g. how     likely it is to result in the use of a green card during the comingmonths.

Given these factors, the DOS and USCIS estimate the Indian EB2category is still oversubscribed and so applied a cut-off date.

Q: Does retrogression affect my priority date or place in linefor a green card?

A: No, retrogression does not impact or change your prioritydate or place in line.  Retrogressiononly means a green card is not immediately available to applicants in certaincategories. 

Q: My category retrogressed, what is my path forward to a greencard if I am in the US and have filed my I-485?

A: The USCIS will hold your pending I-485 until your prioritydate becomes current and a green card is available.  During the time your I-485 is pending withthe USCIS, even if your category is retrogressed, you can:

  • Apply for a work authorization card also called an EAD;
  • Apply for a travel authorization card also called Advance Paroleor AP;
  • Once your I-485 has been pending with the USCIS for more than180 days, you can “port” your pending green card application to a new employerwho provides a qualified job offer; and
  • Your dependent children may be eligible for benefits under theChild Status Protection Act (CSPA) (for more specific information abut the CSPAplease contact your MU attorney).

You are considered to be in a “period of authorized stay” whileyour I-485 is pending.

Q: I did not file my I-485 with a medical exam (form I-693),should I affirmatively send in a medical exam or wait until the USCIS issues anRFE (request for evidence) or deficiency notice asking for a medical exam?

A: The USCIS requests applicants not send in a medicalexam until the USCIS requests the medical exam via RFE or deficiencynotice.  Immigration files are oftentransferred between USCIS offices to process the cases as quickly as possible.  USCIS indicates it is difficult to match anunsolicited medical exam to a pending case.

Q: How does the transfer of underlying basis request work?

A: If an applicant has two or more approved I-140s, theapplicant can request that the USCIS move the pending I-485 from one I-140 toanother.  This request must be made inwriting and include a form I-485j where appropriate.  Applicants must affirmatively request atransfer of underlying basis; the USCIS does not review the applicant’s filesand transfer the I-485 automatically when an I-140 becomes current in adifferent category.  All transferrequests are reviewed and granted at the discretion of the USCIS.

Q: When the USCIS adjudicates the principal applicant’s I-485,does the USCIS also adjudicate the I-485 of the dependent family members?  What happens if a dependent family member’sI-485 is not approved and the priority date of principal retrogresses?

A: USCIS makes every effort to adjudicate all family members’cases together.  However, each case istreated independently and has unique factors of review.  If a principal applicant’s I-485 is approved,but a dependent applicant’s I-485 remains pending, and the priority date of theprincipal applicant retrogresses, the dependent’s I-485 will remain pendingwith the USCIS until the principal’s priority date becomes current again.