October 2023 Visa Bulletin: Moving in the Right Direction on Employer Sponsored Nurse Green Card Cases

Clark Hill PLC

Foreign nationals and their sponsoring US employers or US family members have been eagerly awaiting the release of the US Department of State (DOS) October 2023 Visa Bulletin to confirm if and when they will be eligible to apply for permanent residence in the US. The Sept. 15 release of the first Visa Bulletin of the new fiscal year provided some relief from months of visa availability “retrogression.” In short, this means that as of Oct. 1:

  • Most foreign nurses residing abroad whose employer-sponsored cases have been approved and are “documentarily complete” are a year and a half closer to being able to be scheduled for interviews at consulates around the world, to obtain the immigrant visas that would permit them to enter the US as permanent residents.
  • Many foreign nurses residing in the US whose employer-sponsored cases are ready to be filed or already have been approved are almost three years closer to being able to file applications for Adjustment of Status (AOS) to permanent residence and should ensure their ongoing status and employment authorization in the US until they are eligible to take the next steps in their permanent residence cases.
  • US employers hoping to sponsor foreign nurses for permanent residence in the US any time in the future should get started on that process right away, so as to plan for eventual full relief from visa availability “retrogression” and to account for delays at other related agencies (such as the Department of Labor, which processes the required Prevailing Wage Determinations).

The DOS sets the number of permanent resident “spots” available in a given fiscal year for most employer-sponsored and some family-sponsored cases, allocated based on the foreign national’s “priority date” (the date on which a petition was filed on their behalf) in both the category of family-based (parent, adult son or daughter, sibling) or employment-based (graduate degreed professional, skilled worker) sponsorship and the foreign national’s country of birth. When the number of sponsored foreign nationals exceeds the number of permanent resident spots available in each category, the DOS establishes processing queues to manage the backlog. The monthly Visa Bulletin indicates the queues for priority dates in each category.

Since May, the Visa Bulletin has been in “retrogression” in the employment-based category through which nurses qualify (EB-3), resulting in delays in most foreign nurses’ ability to apply for permanent residence in the US or to obtain immigrant visas abroad even if the underlying sponsorship case has been approved.

The October Visa Bulletin does not completely reset the processing queues at the start of the DOS fiscal year as hoped but provides some relief from the existing retrogression by reducing the projected wait times by a year and a half (with priority dates now at Dec. 1, 2021) for immigrant visas abroad, and by almost three years (with priority dates now at Feb. 1, 2023) for AOS cases in the US. Although employers facing nurse staffing crises across the US will be disappointed to learn that the case processing backlogs were not completely eliminated at the start of the new fiscal year, the new dates show significant progress in case processing since retrogression began in May. Because the Visa Bulletin is updated on a monthly basis, there is good reason to expect that these numbers will move forward again in November and in the coming months to account for processing progress.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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