Timothy D’Arduini, Partner

Publications & Media

Tips to Help Employers Navigate Evolving Green Card Availability and Plan for FY22

Labor & Employment Timothy C. D’Arduini, Ryan Patterson

Close-up detail of American VISA

According to the Department of State, demand for immigrant visas (green cards) remains high as COVID-19 continues to disrupt and delay appointments at U.S. consulates abroad. With an estimated 100,000 unused employment-based immigrant visas remaining, the State Department continues to allow more people currently in the United States to apply for green cards than expected.

Companies and their employees should remain focused on the State Department’s monthly Visa Bulletin to see what will happen when the government begins Fiscal Year (FY) 2022 in October. The government is balancing the availability of green cards with the reality that very few immigrant visas will be processed at U.S. consulates, increasing their availability in the United States.

What Employers Need to Know On An Immediate Basis

Below are our top observations from the September 2021 Visa Bulletin:

  • The Final Action Dates Chart[1] will advance three months for Indian nationals in the employment-based, second-preference (EB-2) category and six months for Indian nationals in the employment-based, third-preference (EB-3) category. The Dates for Filing Chart[2] will advance by only 1 month for Indian nationals in the EB-3 category.
  • The Final Action Dates Chart will advance three months for Chinese nationals in the EB-2 category and one month for Chinese nationals in the Other Workers (i.e., unskilled workers) category. The Dates of Filing Chart will advance by two months for Chinese nationals in the EB-2 category.
  • The employment-based, first-preference (EB-1) category will remain current for nationals of all countries.
  • USCIS announced it will continue using the Final Action Dates Chart for all employment-based preference categories.

Full details on the movement in the Final Action Dates Chart from August 2021 to September 2021 are available here:  

With the high number of unused employment-based immigrant visas remaining for FY 2021, we recommend that employers closely monitor their employees’ priority dates.

In a recent “Chats with Charlie,” the Department of State’s Charlie Oppenheim indicated that the number of unused visas is only an estimate and that the real number remains difficult to predict as a result of the impact of COVID-19 on travel, consular closures, and personnel challenges across the globe. Oppenheim also stated that employers should not expect significant movement in the Final Action Dates Chart during the first quarter of FY 2022, while refraining from speculating on movement for either the Notice of Filing Chart or the Final Action Dates Chart for the remainder of FY 2022.

What Employers Need To Know To Plan For FY 2022

In light of the movement in the Visa Bulletin in October 2020 and the continued progression of green card availability throughout FY 2022, we recommend employers take the following steps in preparing to support your employees in this final stage of the permanent residency process:

  1. Review the priority dates for your employee population and consider what employees may be eligible to apply for Adjustment of Status (I-485) if green card availability moves forward 1, 2, 3, or 4 years in October.
  2. Consider a townhall with your foreign national populations to discuss the likelihood of them becoming current and give them an overview of the process, timelines, and explain what documents are required.
  3. Prepare communications to your employee population on the types of documentation that will be required so they can begin to collect them, particularly as it relates to birth and marriage/relationship documents.
  4. Remind your employees not to book appointments for medical examinations as they are only valid for a limited time period before they are able to submit their green card application.
  5. Plan for continued delays for those applying for green cards via consular processing outside of the United States, as the Department of State has indicated that it will be some time, and on a country-by-country basis, before normal operations resume to accommodate these appointments.

If you have any questions on how best to plan for FY 2022, please contact your local Quarles & Brady attorney team or:

Timothy D'Arduini |(202) 780-2641|[email protected]

Ryan Patterson |(239) 434-4925|[email protected]

[1] The Final Action Dates chart shows which priority dates are current, broken down by eligibility category and country of birth. These cases are at the “front of the line” for a green card.

[2] The Dates for Filing chart shows which foreign nationals can prepare and file their green card applications, even if their final action/priority date is not current. The government uses this tool to increase the number of people who can file green card applications and thus reduce the number of unused green card numbers remaining at the end of the fiscal year.

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