EB Category To Receive 121,500 Additional Visas From FB Category

Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000.

Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

For fiscal year 2019 (which ended on September 30, 2019), only around 104,500 visas were allotted to family based visa petitions; instead of 226,000. This means about 121,500 visas were unused in the family based category.

According to law, any unused visas from family category will flow to employment based category. This means EB category will be getting an additional 121,500 visas in fiscal year 2020 (October 2020 to September 2021). This is almost double the annual visa allotment for EB Categories.

You must be wondering, would all these 121,500 visas go to EB2 India + China (since in EB categories, spillovers go from EB4 --> EB5 --> EB1 --> EB2 --> EB3). This would not be the case. For spillovers from FB category to EB category, all EB categories would be getting "equal" spillover, as defined by law.

	% of total visas in  each category	Old Total Visas (140,000 visas)	New Total Visas (261,500 visas)	Extra visas per category
EB1	28.6%	40,040	74,789	34,749
EB2	28.6%	40,040	74,789	34,749
EB3	28.6%	40,040	74,789	34,749
EB4	7.1%	9,940	18,305	8,365
EB5	7.1%	9,940	18,305	8,365
Total	100%	140,000	261,500	121,500

 
Does this mean all countries in each category will get equal spillover? The answer is yes. The only difference is the number of visas have increased per country. Remember each country is limited to 7% in each category.

EB2 Category:
Before: EB2 India can get max 7% * 40040 = 2802 visas.
Now: EB2 India will get 7% * 74789 = 5235 visas (or 2433 additional visas).

In EB2 Category, India and China are the only backlogged countries. Now each country (including India and China) will get atleast 5,235 visas each. The remaining unused visas from EB2ROW will flow back to retrogressed countries (EB2 India and EB2 China).

Since EB2 India is at May 2011 and EB2 China is at Oct 2016, we expect EB2 India would get most (or all) of the additional unused visas (since USCIS/DOS tries to "level" the priority date for all countries while calculating spillovers in each category).

We have already seen DOS move EB2 India/China FAD (final action date) in Oct 2020 VB by around 1.5 months. It will continue to move at rapid pace for next several months. Since most of the unused visas from EB2ROW will go to EB2India, DOS will also move EB2 India DFA (date for filing action) much faster than for EB2China.

It is currently hard to predict the amount of unused visas from EB2ROW to EB2 India (and China) because in the next few months (a) the demand from EB2ROW can increase/decrease and (b) the demand from EB3ROW porting to EB2ROW can increase/decrease. Also even though EB3India is ahead of EB2India, people can still upgrade to EB2India.

This could further decrease the visas available for applicants who originally filed in EB2India category. Similarly, applicants who filed in EB2India category can downgrade their petition to EB3India. The end result is that there would be LOTS of applicants who have pending petition in both EB2India and EB3India category.

EB3 Category:
EB3 category will receive around 35,000 additional visas. Because of this large supply, EB3ROW has moved forward by 1.5 years and has become current. It is likely that since EB3ROW is current, more applicants will file their application in this category; which could result in most of the visas been used up. Thus the flow of unused visas from EB3ROW to EB3India/EB3China could be very low. It is also likely that EB3ROW could again become retrogressed around July-Sept 2021.

For both India and China, the EB3 Category is ahead of EB2 Category by 14 months for China and 4.5 months for India. This will results in lots of duplicate applications in EB2 and EB3 category for India and China. EB3 India has been upgrading to EB2India for nearly 10 years; which would explain why the gap between these two category is lower than that of China.

The good news is that each country will receive atleast 5,235 visas (instead of the usual 2,802 visas). This could result in dates moving a lot faster for next several months.

EB4/EB5 Category:
Due to severe backlog in China, El Savador, Mexico and few other countries, all unused visas from EB4ROW and EB5ROW will be alloted to these countries in EB4 and EB5 categories respectively. Hence there is likely to be no spillover from EB4/EB5 to EB1 category. However dates would likely move much faster for these backlogged EB4 countries in July-Sept 2021 visa bulletin.

EB1 Category:
Due to two years backlog in India and China, all unused visas in EB1ROW would be alloted to EB1China and EB1 India; resulting in no visas spillover to EB2 category. However dates would likely move much faster for EB1 China and India in July-Sept 2021 visa bulletin.

Frequently Asked Questions:

Q. Why did FB category only used up around 104,500 instead of usual 226,000 visas allotted by Congress?
A. Few months back, US President DJT signed an executive order suspending immigration in most areas citing Covid 19 concerns. In addition, due to Covid-19 most of the US embassies had closed down and cancelled all immigration and non-immigration appointments. For FB categories, most of the applicants are outside US; and when these appointments were cancelled, no immigrant visas could be issued to anyone. Hence there is a huge surplus of unused visas in FB category; which per law was allotted to EB category.

Q. Would FB category receive spillovers from EB Category?
A. By law, any unused visas in EB category would spillover to FB category. However most of the applicants in EB category are already located inside US. Hence for these applicants, there is no need for consular processing (applying in US embassy). They can simply file I-485 applications (instead of going through NVC). The end result is that EB category has used up all allotted visas for FY 2019; resulting in no spillover to FB category.

Th important thing to remember is that there are more EB cpplicants within US (working on H-1B visa) than outside US. For FB applicants the opposite is true. There are more applicants outside US than within. Hence EB category generally use up their alloted quota; whereas FB category may not.

Q. How soon would USCIS/DOS start allocating these 121,500 spillovers?
A. There are many strategies that USCIS/DOS can take. The best strategy is to increase date rapidly for first few months. This will generate demand (applications filed) in the next several months. Based on the monthly demand they can either increase or decrease how fast they move date forward. By law, USCIS/DOS is required to use up all allotted visas in EB and FB category.

Since the future demand in each category (F1-F4 and EB1-EB5) is unknown; it is not currently possible to estimate exactly how far the dates would move. In addition many applicants would upgrade or downgrade their petition. This will increase number of applicants waiting in the queue. Also if USCIS/DOS moves the date forward too much, it would result in retrogression in July-Sept 2021 visa bulletins (which they try hard to avoid).

Q. When can you submit I-485 application?
A. You should look at the "Dates For Filing Applications" tab in the latest visa bulletin. The date is different for different category and different country. Also the dates will typically change every month. You can signup for our newsletter to be notified within minutes when new visa bulletin is released.

Q. How long is the current waiting time to receive I-485 application approval?
A. If you look at the Case Processing Time for I-485 form in GC Calculator page, it is around 8.5 to 23 months depending on which service center you applied as well as type of GC application.

More Things To Consider:
The US presidential executive order is currently still valid and immigration outside US is suspended. However applicants inside US can still adjust their status (by filing form I-485); if there priority date is current. It is likely that if US embassies do not issue all allotted visas in FY2020, EB category will have more unused spillover in FY 2021 and vice versa.

Also starting from Oct 13, 2020, applicants will have to file for I-944 to show financial self sufficiency. If you do not file this form with your I-485 application, USCIS will issues an RFE (request for evidence) to submit this form.

So based on rapidly increasing demand (due to dates moving forward), increased time to process I-485 applications (18 months), applicants downgrading/upgrading application, how many family members will be added to each application, applicants been called for in-person interview, less visa officers available to process applications due to Covid-19; it is impossible to predict when the actual GC will be issued to each applicant.

If your priority date is earlier than the DFA (date for filing application), we recommend submitting your I-485 application along with EAD/AP application. Once EAD/AP application is approved, you can travel freely in or outside US. You can also change employer if your I-485 form is pending for more than 180 days.

Also See:

• Immigration News (updated every 15 minutes): https://www.mygcvisa.com/news/

• Add or View all I-130/NVC/I-140/I-485 cases in GC Tracker: https://www.mygcvisa.com/tracker/

Current Step: If your priority date is not current, then you can calculate when it may become current, check your case status, case processing time, etc: https://www.mygcvisa.com/calculator
 

Next Steps: If priority date is current and

1. If applicant is inside US, they will have to file I-485: https://blog.mygcvisa.com/2013/04/how-to-file-i-485-application.html

2. If applicant is outside US, it will be sent to NVC: https://www.mygcvisa.com/nvc/overview-after-nvc-petition-approved.aspx

Source: https://blog.mygcvisa.com/2020/10/eb-category-to-get-121500-additional.html