You’ve Got Questions About Employment-Based Adjustment of Status, USCIS Has Answers

November 3, 2022

On Tuesday, November 1, 2022, USCIS published the “Fiscal Year 2023 Employment-Based Adjustment of Status FAQs.” If you are a foreign national currently working through (or hoping to start) the employment-based adjustment of status (AOS) process, an employer sponsoring a foreign national’s AOS, or a lawyer or paralegal working on employment-based AOS cases, this FAQs sheet is jampacked with useful insight you’ll want to peruse.

Below are some highlights from the FAQ and USCIS’s answers to a few of the questions and concerns we often hear from our clients.

USCIS is currently adjudicating AOS cases based on the visa numbers allocated for FY 2023 – which ends on September 30, 2023. There are approximately 197,000 employment-based immigrant visas available for FY 2023 (including the 57,000 unused family-based visas from FY 2022 that rolled over into this year’s employment-based categories). While this number is significantly lower than the annual limit for employment-based visas in FY 2022 (281,507), it is still higher than pre-pandemic annual limits.

With 57,000 unused family-based visas rolling over into the employment-based categories, many are wondering how those visas will be distributed amongst the five employment-based AOS categories. An important point to keep in mind is that the unused family-based visas are not automatically applied to applicants with the earliest priority dates; unused visas are distributed according to statutorily fixed percentages. According to the Immigration and Nationality Act, EB-1, EB-2, and EB-3 categories each receive 28.6% of the overall annual visa limit, and EB-4 and EB-5 each receive 7.1% of the overall limit. Accordingly, the 57,000 unused family-based visas are distributed amongst the five employment-based categories based on the same percentages.

A major concern when it comes to the AOS process is retrogression of the Final Action Date in USCIS’s Visa Bulletin. Retrogression generally occurs either when the demand for a particular visa category is higher than the Department of State (DOS) estimated, or the availability of visas is lower than estimated. For example, the Final Action Date for Indian nationals in the EB-2 category retrogressed from December 1, 2014 (September 2022 Visa Bulletin) to May 1, 2012 (October 2022 Visa Bulletin). The FAQs explained that without this retrogression, USCIS and the DOS would have exceeded the available visas for the EB-2 category within the first few weeks of FY 2023. Whether an AOS category will retrogress is difficult to predict and can change throughout the fiscal year. The important thing to remember is the retrogression does not change a foreign national’s priority date nor does it have any impact on lawful permanent residents.

Once a foreign national files their I-485 Application to Register Permanent Residence or Adjust Status, certain benefits become available, such as:

• Employment Authorization that is not tied to any particular employer, position, or job classification;
• Advanced Parole, which allows foreign nationals to travel internationally and reenter the U.S. while their I-485 is pending without abandoning their application;
• Portability of employment-based AOS cases that have been pending with USCIS for 180 days or more, allowing foreign nationals to change employers or jobs so long as the new opportunity is the same or similar to the original role the I-485 is based upon;
• Derivative children may not age out of eligibility to adjust status – depending on the specific facts of the case; and
• No accrual of unlawful presence while an AOS application is pending – foreign nationals are considered to be “in a period of stay authorized.”

As mentioned, USCIS’s FAQs sheet has a lot of useful information and insight into how USCIS and the DOS handle and process employment-based AOS cases. We highly recommend taking a moment to review the full FAQs sheet to learn about additional updates and answers to frequently asked questions.

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