Visa Bulletin for September 2019

Introduction

The U.S. Department of State published the Visa Bulletin for September 2019 on August 9, 2019 [PDF version]. The Visa Bulletin for September 2019 is the final visa bulletin for fiscal year 2019. It includes the dates for filing and application final action dates for the family-sponsored and employment-based preferences. The United States Citizenship and Immigration Services (USCIS) determined on August 15 that almost all family-sponsored adjustment of status hopefuls must use the favorable dates for filing in September, while all employment-based adjustment of status hopefuls must use the final action dates [PDF version]. The lone exception is the family-sponsored F2A preference, but the final action date for this category is current for all chargeability areas in September 2019.

We will examine the pertinent charts from the Visa Bulletin for September 2019 and their applicability to beneficiaries of approved preference petitions seeking adjustment of status. We will also discuss news and notes from the DOS Visa Bulletin for September 2019.

We have several resources on site explaining how to use the visa bulletins generally. First, please see our general article on using the visa bulletin as a noncitizen seeking adjustment of status based on an approved preference petition [see article]. Second, please see our article on the difference between final action dates and dates for filing [see article]. Finally, to read about previous visa bulletins, please see our growing topic index [see index].

Family-Sponsored Cases

The USCIS determined that nearly all beneficiaries of approved family-sponsored preference petitions must use the more favorable dates for filing from the Visa Bulletin for September 2019. The lone exception, beneficiaries of approved F2A preference petitions, must use the final action dates. However, because the final action date for all F2A chargeability areas is current, this news is not at all unfavorable.

The beneficiary of an approved family-sponsored immigrant visa petition must compare his or her priority date with the applicable final action or filing date cutoff for his or her preference category and chargeability area. If the priority date is earlier than the applicable cutoff date, the beneficiary may apply for adjustment of status in September, provided that he or she is otherwise eligible to apply for adjustment of status under the applicable statutes and regulations. Those seeking immigrant visas abroad instead go through consular processing.

The priority date in family-sponsored cases is generally the date on which the underlying immigrant visa petition was properly filed with the USCIS on the beneficiary's behalf.

The following, courtesy of USCIS, are the final action dates for the F2A preference:

“C” stands for “current.” Thus, the beneficiary of an approved family-sponsored petition in the F2A preference may apply for adjustment of status in September 2019 regardless of his or her priority date, provided that he or she is otherwise eligible to apply for adjustment of status. The F2A preference is for the spouse or unmarried children of a lawful permanent resident.

The following, courtesy of USCIS, are the dates for filing for all family-sponsored preferences except F2A:

Beneficiaries of approved immigrant visa petitions in these preferences must compare their priority dates with the applicable filing date cutoffs to determine if they can apply for adjustment of status in September 2019.

For reference purposes, the following, courtesy of DOS, are the final action dates for all family-sponsored preferences:

As we explained, adjustment of status applicants except for those in the F2A preference must refer to the dates for filing (see above) instead of the less favorable final action dates for determining whether they can apply for adjustment of status in September 2019.

Employment-Based Cases

The USCIS has determined that all beneficiaries of approved employment-based immigrant visa petitions must use the final action dates to determine eligibility for applying for adjustment of status in September 2019. Thus, the beneficiary of an approved employment-based preference petition must compare his or her priority date with the applicable final action cutoff date to see if he or she is eligible to apply for adjustment of status in September. The beneficiary must also be otherwise eligible to apply for adjustment of status under the applicable statutes and regulations. Those seeking their immigrant visas abroad must go through the consular processing procedures instead.

Determining the priority date of an employment-based immigrant visa petition will generally depend on what type of petition it is. In employment-based cases where labor certification was required, the filing date will generally be the date on which the labor certification application was accepted for processing by the U.S. Department of Labor (DOL). In cases where no labor certification was required, the priority date will generally be the date on which the employment-based petition was properly filed with the USCIS.

The following, courtesy of USCIS, are the final action dates for employment-based cases in September 2019:

“U” stands for “unavailable.” Individuals whose petitions are in a preference category and chargeability area with a final action date of “unavailable” are ineligible to apply for adjustment of status in September 2019, regardless of their priority dates. We discuss this situation further in our section titled News and Notes from the Visa Bulletin for September 2019, below.

News and Notes from the Visa Bulletin for September 2019

The DOS's Visa Bulletin for September 2019 includes several news and notes, both about the September Visa Bulletin and also what to expect for the Visa Bulletin for October 2019, which will be the first of fiscal year 2020. The DOS makes several references to the dates in the August 2019 Visa Bulletin, which we covered here on site [see blog].

We discuss these news and notes below.

Determination of Worldwide Family-Sponsored and Employment-Based Preference Limits for Fiscal Year 2019

Under section 201 of the Immigration and Nationality Act (INA), the DOS is determined to set the annual worldwide visa allocation limits for the family-sponsored and employment-based preference categories each fiscal year (there is no limit on visa allocation based on immediate relative petitions). The DOS's determination is constrained by a number of statutory factors. Based on these factors, and in accord with section 201 of the INA, the DOS determined that the numerical limitations for fiscal year 2019 are as follows:

Worldwide Family-Sponsored preference limit: 226,00
Worldwide Employment-Based preference limit: 141,918

Under section 202(a) of the INA, the per-country limit is set at a maximum of 7-percent of the worldwide limit for the family-sponsored and employment-based preferences. Thus, the maximum numbers available to any individual country in fiscal year 2019 is 25,754. The dependent area annual limit is 2-percent, or 7,358.

Based on these calculations, the DOS took the following steps in order to ensure that visa number issuance in fiscal year 2019 remains within the annual worldwide and per-country limits.

Unavailability of Worldwide E4 in September 2019

The DOS explained that USCIS demand for E4 numbers increased dramatically since June 2019. This increase came primarily from Special Immigrant Juvenile applications. As a result, the annual worldwide limit for the E4 category was reached in August 2019. For this reason, the DOS made the entire E4 category unavailable early in August 2019, and it has kept it so for September 2019 in order to keep visa issuance within the annual worldwide limit for fiscal year 2019. E4 numbers will once again be available in October 2019. The DOS states that it will make every attempt to return the final action dates to at least what they were originally for August 2019.

Retrogression of China E1 and E3

The DOS had previously retrogressed the China E1 final action date. Despite that retrogression, the USCIS demand for adjustment of status in the China E1 category remained excessive. For this reason, the DOS retrogressed the final action date for China E1 again in order to keep visa issuance within worldwide limits for fiscal year 2019. Final action date retrogression was also required in the China E3 preference to keep visa issuance within the annual worldwide limit. The DOS imposed these new final action dates in the middle of August 2019. The DOS will make every effort to return the final action dates to at least what they originally work for August 2019.

Unavailability of India E1 and Retrogression of India E3

The DOS had previously retrogressed the final action dates for India E1 and E3. Despite this, the demand for adjustment of status in these categories remained excessive. For this reason, the DOS made the final action date for India E1 unavailable in July. It will remain unavailable in September 2019. The DOS retrogressed the final action date for India E3 in the middle of August 2019 and it will remain as such in September 2019. The DOS will make every effort to return the final action dates for India E1 and E3 to at least what they were originally in August, except in the case of India E1 where the DOS will likely make visas available again in October 2019.

Further Corrective Action Possible in September 2019

The DOS stated that “[i]t is likely that corrective action will also be required for other preference prior to the end of the fiscal year.” That is, DOS may find retrogression of final action dates in other preferences necessary during September 2019. Furthermore, DOS could make numbers in some categories unavailable if the annual limit is reached during September. The DOS will work to return the final action dates to at least what they were originally for August 2019 for the October 2019 Visa Bulletin.

Conclusion

Those planning to apply for adjustment of status should always stay abreast of the monthly visa bulletins in order to be ready to apply at the first opportunity. This is especially important as the fiscal year comes to a close because of the possibility that the DOS may find it necessary to take “corrective action” during September 2019, which could include final action date retrogression or making numbers unavailable entirely in certain preferences and/or chargeability areas. Those applying for visas abroad should also follow the immigrant visa bulletin for an idea of when they may be allowed to proceed in the consular processing process. Petitioners and applicants may consult with an experienced immigration attorney for case-specific guidance.