All About the EB-3 Retrogression for India in the July Visa Bulletin

Readers of the July Visa Bulletin may have been surprised to learn that the final action date for the employment-based third preference category for nationals of India retrogressed by more than 3 years and 5 months from June 15, 2012 (in the June Visa Bulletin) to January 1, 2009 (in the July Visa Bulletin).

What is the Employment-Based Third Preference Category also known as EB-3?

The employment-based third preference category (or EB-3) is reserved for three types of subcategories of immigrants: skilled workers, professionals, or other workers. No matter the subcategory, immigrants must have an approved labor certification from the Department of Labor and a permanent full-time job offer from a U.S. employer.

What are the subcategories?

“Skilled workers” are defined as persons whose jobs require a minimum of 2 years training or experience, that is not of a temporary or seasonal nature. The skilled worker must meet the educational, training, or experience requirements of the job offer. Relevant post-secondary education may be considered as training.
“Professionals” are defined as persons whose job requires at least a U.S. baccalaureate or foreign equivalent degree and are a member of the professions.
The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

How does one apply for an immigrant visa under EB-3?

As a general matter, your U.S. employer (the petitioner) must file a Form I-140, Immigrant Petition for Alien Workers. As part of the application process, your employer must be able to demonstrate a continuing ability to pay the offered wage as of the priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.

EB-3 Final Action Date Retrogression for India

Unfortunately, the tremendous retrogression of this category for Indian nationals means even longer delays in the immigrant visa process.

Recently, the State Department provided an announcement clarifying the reason behind India’s EB-3 retrogression in the July 2023 Visa Bulletin, explaining that demand for visas in this category exceeds the supply of available visa numbers for the remaining fiscal year.

Q: Why did the Department of State retrogress the India EB-3 Final Action Date in the July 2023 Visa Bulletin?

A: The Department of State is responsible for enforcing the annual [visa numerical limits] established by Congress.

As the Department explains in “The Operation of the Numerical Control System,” when setting a Final Action Date in the Visa Bulletin, the demand for visas by applicants in an immigrant visa category chargeable to a particular country is compared to the visas remaining for that country in the current fiscal year.

If the demand for visas in a category exceeds the supply of available numbers, the Department establishes a Final Action Date which is the priority date of the first applicant for whom a visa number could not be allocated.

In the case of India EB-3 visas for July 2023, no visas remain available for applicants chargeable to India in this category because by the start of July, it is estimated that all of the EB-3 visa numbers available for the fiscal year will have already been used by applicants chargeable to India. Therefore, the Final Action Date for India is one day before the priority date of the first Indian applicant estimated to apply for an EB-3 visa.

Q: When will the Final Action Date for India EB-3 advance, or return to where it was in June?

A: The annual limits will reset with the start of the new fiscal year, on October 1, 2023. The EB-3 Final Action Date for India is expected to advance once the annual limits reset in fiscal year 2024; however, the movement of this date throughout the fiscal year depends on various factors such as visa demand and the Employment-Based annual limit, which at this time is projected to be substantially lower than in FY-23.

Q: Have these types of retrogressions, due to all visas being used, happened in the past?

A: Yes, this has occurred with regularity for oversubscribed countries in Employment-Based categories, particularly as the annual limits were lower in pre-pandemic years. Recent examples include the Visa Bulletin for June 2023, July 2019, June 2019, August 2018, and April 2018.

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