October is here!

October is always an interesting month for immigration law especially when dealing with petitions that have a priority date. Some immigration benefits such as a family-based petition filed by a lawful permanent resident on behalf of their unmarried sons and daughters who are 21 years of age or older will generally have a wait time even after approval due to the unavailability of a visa number. The priority date is the date that the petition is received by USCIS and acts as a ticket number or marker to determine when an approved petition can utilize a visa number so the beneficiary of that petition can either obtain an immigrant visa or adjust status within the United States.

Today’s article will focus primary on the Special Immigrant Juvenile (“SIJ”) category for applicants from El Salvador, Guatemala, and Honduras. SIJ is a special status that allows children under the age of 21 to obtain a green card or legal status if they have been abused, neglected, or abandoned by their parents.

Before we start, let’s provide some basic information about immigration law in the United States. Immigration is subjected to federal law and not state law. In regards to immigrants, Congress established several different preference categories and each particular preference categories are allocated a set amount of visa numbers each fiscal year. In order to track that the number of visas used each fiscal year is within the limits, the Department of State publishes a Visa Bulletin each month with the priority date of petitions that are eligible or are “current” for a visa number. The visa numbers for each particular year can either be used up or discarded as unused at the end of the fiscal year.

The end of the fiscal year, however, is not December. Instead, it is the end of September. In other words, in October of each year, the priority date for petitions that are eligible for a visa can and generally advances because visa numbers are made available once again as Congress resets the number of available visa numbers for each preference categories.

Now in regards to the SIJ category, SIJ petitions are categorized under the Employment-based fourth preference. There are approximately 9,940 visa numbers available each year for this category. In March of 2022, however, there was a regression as the available visa numbers for El Salvador, Guatemala, and Honduras were used up before September.

In February of 2022, the priority date was March 15, 2019. However, in March of 2022, the priority date regressed to June 15, 2017. I believed that the June 15, 2017 was an arbitrary number to show that visa numbers were unavailable. Previously, the visa bulletin would say “unavailable” but that led to some confusion as some people mistakenly believed that the entire preference category was removed and “unavailable” permanently.

In October of 2022, the date for final action for employment-based fourth preference is March 15, 2018 so visa numbers are available once again but the date has regressed an entire year from March 15, 2019 to March 15, 2018. This is bad news for some of our clients as they were closed to being current prior to the regression.

Hopefully, we will have more information about the movement of this category in November of 2022 but it is unclear as the Visa bulletin for October states the following “High demand in the Employment Fourth category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.”

In the meantime, we will continue to monitor the visa bulletin on behalf of our clients and hope for the best.