Analysis of Pandemic Impact on Green Card Backlogs and FY2021 Employment-Based Immigration Trends
Based on January 28, 2022 material, this article reviews how the pandemic and immigration bans affected green card backlogs. It covers a State Department official's remarks on underissued EB-5 visas in FY2020 and a possible increase to 200,000 employment-based visas in FY2021, explains the spillover mechanism and order from family to employment categories, and distinguishes domestic adjustment of status from overseas consular processing.
This morning, the State Department released the August Visa Bulletin. Due to the pandemic, employment-based EB-1/2/3 priority dates advanced significantly.
Figures Disclosed by Charlie Oppenheim
On June 16, Charlie Oppenheim, chief of the State Department's Visa Control and Reporting Division, made the following remarks during a conference call with Invest in the USA (IIUSA), the EB-5 industry trade association [source]:
- With only three months left in FY2020, only 4,500 EB-5 visas had been issued, far below the 10,000 quota. This was mainly due to the Covid-19 pandemic causing consulates worldwide to close. It is expected that EB-5 visas will not be fully issued in FY2020 and there will be leftovers.
- For the same reason, a large number of family-based immigrant visas will not be fully issued in FY2020, and the unused quotas will spill over to employment-based categories in FY2021. The annual employment-based quota is about 140,000. Charlie estimates that FY2021 will have 200,000 employment-based quotas, meaning about 60,000 green card quotas will be transferred from family-based immigration.
- EB-5 accounts for 7.1% of the employment-based quota, so FY2021 will have about 14,000 EB-5 visas.
Impact of the Pandemic and Trump's Immigration Ban on Priority Dates
The above changes are mainly due to the pandemic and Trump's immigration ban. Because of the pandemic, even without Trump's executive order, U.S. consulates in many countries around the world had effectively stopped public operations and issuing immigrant visas. Meanwhile, domestic adjustment of status, although also affected by work-from-home arrangements, was still issuing green cards.
The suspension of immigrant visa issuance at overseas consulates mainly affected family-based immigration, since the vast majority of family-based immigrants wait for their priority dates abroad, whereas most employment-based immigrants work in the United States while waiting to adjust status. In FY19, for example, about 210,000 family-based green cards were issued for the year, of which 190,000 were issued by overseas consulates; of the 140,000 employment-based green cards, only 28,000 were issued by overseas consulates [source].
How Green Card Quota Spillover Works
After the Visa Bulletin was released, a reader asked following my comment:
Why, when family-based immigrant visas are not used up, do priority dates for family-based immigration not advance significantly, but instead the visas are given to employment-based immigration?
The basic working principle of 'Spill Over' is that when green card numbers in one category remain unused and cannot be issued, they are transferred to another category to avoid waste. Specifically, unused F-1 numbers are allocated to F-2A/F-2B; unused F-1/F-2 numbers go to F-3; unused EB-1 numbers go to EB-2; and unused EB-1/EB-2 numbers go to EB-3; see the USCIS explanation. Similarly, if the entire FB category has unused numbers, they are transferred to EB; if the entire EB category has unused numbers, they are transferred to FB.
Family-Based Immigration Spillover Order
| Family-Based Immigration | Green Card Quota |
|---|---|
| F-1 | 23,400 + unused quotas from other family-based categories |
| F-2A | 87,934 + part of unused F-1 |
| F-2B | 26,266 + part of unused F-1 + unused F-2A |
| F-3 | 23,400 + unused F-1/F-2 |
| F-4 | 65,000 + unused F-1/F-2/F-3 |
Employment-Based Immigration Spillover Order
| Employment-Based Immigration | Green Card Quota |
|---|---|
| EB-1 | 28.6% of total EB quota + unused EB4/EB5 |
| EB-2 | 28.6% of total EB quota + unused EB1 |
| EB-3 Skilled Workers | 28.6% of total EB quota + unused EB1/EB2 |
| EB-3 Other Workers | Not more than 10,000 |
| EB-4 | 7.1% of total EB quota |
| EB-5 | 7.1% of total EB quota |
Domestic Adjustment of Status vs. Overseas Consular Processing
Another reader asked: "Why are surplus family-based immigrant visas not given to domestic COS (change of status) applicants, but instead directly to EB?"
I have not found an official explanation for this issue. We have no access to the actual practices of the State Department, USCIS, and overseas consulates, nor to current specific data. However, judging from the design intent of visa quotas and spill over, 'unused' family immigration quotas should refer to the total family immigration quota, including both overseas consular processing and domestic adjustment of status.
As mentioned above, the vast majority of family immigration cases are processed at overseas consulates, and the proportion of family immigration applicants waiting for priority dates within the United States is relatively small. In addition, both family and employment-based immigration are subject to country caps. Therefore, it is entirely possible that a category as a whole has 'unused numbers that cannot be issued,' while you, as an applicant in that category, still 'cannot get a visa number'—because although the category is under-subscribed globally, the allocation for your country in that category has already been exhausted.
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