[Federal Register Volume 88, Number 59 (Tuesday, March 28, 2023)]
[Rules and Regulations]
[Pages 18252-18253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06252]


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DEPARTMENT OF STATE

22 CFR Chapter I

[Public Notice 11985]
RIN 1400-ZA27


Employment-Based Preference Immigrant Visa Final Action Dates and 
Dates for Filing for El Salvador, Guatemala, and Honduras

AGENCY: Department of State.

ACTION: Interpretation of certain statutory provisions.

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SUMMARY: The Department of State (``Department'') is issuing this 
document to state its interpretation of certain provisions in the 
Immigration and Nationality Act (INA) regarding the availability of 
immigrant visa numbers in categories subject to an annual numerical 
limit. To ensure that Department practice is consistent with these INA 
provisions, future Visa Bulletins, beginning with the April 2023 Visa 
Bulletin, will reflect this interpretation with respect to the 
availability of employment-based preference visas for applicants from 
the Northern Central American countries of El Salvador, Guatemala, and 
Honduras (``NCA Countries'').

DATES: March 28, 2023.

FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory 
Coordinator, Visa Services, Bureau of Consular Affairs, 600 19th Street 
NW, Washington, DC 20522, 202-485-7586, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Applicants for immigrant visas subject to numerical limitations 
prescribed in sections 201-203 of the INA, 8 U.S.C. 1151-1153, are 
generally chargeable to their country of birth. INA 203(e), 8 U.S.C. 
1153(e), governs the order in which immigrant visas in the family-
sponsored and employment-based preference categories under INA 203(a)-
(b), 8 U.S.C. 1153(a)-(b), respectively, are allocated, and requires 
that visas in these categories be made available in the order in which 
the associated petition is filed.
    INA 202(a)(2), 8 U.S.C. 1152(a)(2), imposes a ``per country'' limit 
of seven (7) percent of the total number of available family-sponsored 
and employment-based preference immigrant visas each fiscal year to 
nationals of individual foreign states. If the Department determines 
that preference visa issuances to nationals of a particular country 
will exceed the per-country limit, that country is identified in the 
Visa Bulletin as ``oversubscribed'' and INA 202(e), 8 U.S.C. 1152(e), 
requires that visas in each preference category must be pro-rated to 
ensure distribution across all preference categories. Individual 
family-sponsored and employment-based preference categories are also 
deemed ``oversubscribed'' when worldwide demand exceeds the number of 
immigrant visas available in those categories. Final action dates are 
listed in the Visa Bulletin when countries and visa categories are 
oversubscribed, and immigrant visas in categories with final action 
dates are available only to applicants with priority dates earlier than 
the listed final action date.
    The EB-4 category consists of special immigrants as defined in the 
INA, including certain religious workers, certain current and former 
U.S. Government employees abroad, certain officers and employees of 
international organizations, and certain special

[[Page 18253]]

immigrant juveniles (SIJs). See sections 203(b)(4) and 101(a)(27) of 
the INA, 8 U.S.C. 1153(b)(4), 1101(a)(27).

II. Discussion of the Change Reflected in the April 2023 Visa Bulletin

    The Department seeks to clarify that the INA permits prorated 
allocation of available visas within an employment-based preference 
category to nationals from an individual country only when family-
sponsored and employment-based preference visa demand from that country 
will exceed its per-country limit under INA section 202(a)(2), 8 U.S.C. 
1152(a)(2). Consistent with this interpretation, the Department is no 
longer assigning separate final action and filing dates for individuals 
chargeable to any of the NCA Countries in the EB-4 category and 
individuals chargeable to these three countries are now subject to the 
dates in the column headed ``All Chargeability Areas Except Those 
Listed'' (referred to herein as ``ROW,'' meaning the rest of the 
world). The Department is required to make this change to bring 
Department practice, as reflected in the Visa Bulletin, into compliance 
with these INA provisions. As a result of this change, there is no 
longer a need for a separate column for the NCA Countries in the 
employment-based preference ``Final Action Dates'' and ``Dates for 
Filing'' charts in the Visa Bulletin.
    Specifically, INA 202(a), 8 U.S.C. 1152(a), makes clear that the 
per-country limit, which is implemented by setting final action dates 
for a country in the Visa Bulletin, is triggered only when preference 
immigrant visa demand from a country will exceed seven percent of the 
total number of preference visas made available in INA section 203(a)-
(b), 8 U.S.C. 1153(a)-(b); that is, seven percent of the total number 
available for all family-sponsored and employment-based preference 
immigrant visas available worldwide.
    This change corrects misapplication of the law in prior Visa 
Bulletins, beginning with the May 2016 Visa Bulletin, which added a 
separate column to the ``Final Action Dates for Employment-Based 
Preference Cases'' table, showing that EB-4 applicants chargeable to 
the NCA Countries were assigned an EB-4 final action date separate from 
the ROW column and these three countries were listed as 
``oversubscribed'' and subject to the pro-rating provision at INA 
202(e)(3), 8 U.S.C. 1152(e)(3). The May 2016 Visa Bulletin explained 
that ``extremely high demand'' in the EB-4 category (including the EB-4 
subcategory for Certain Religious Workers (SR)) for applicants from the 
NCA Countries required implementation of final action dates in the EB-4 
category for these countries. EB-4 final action dates were thus 
established for these three countries since May 2016 based on their 
high demand for EB-4 visas. The same approach was reflected in 
subsequent Visa Bulletins and in the corresponding table with ``Dates 
for Filing of Employment-Based Visa Applications,'' beginning with the 
October 2017 Visa Bulletin. However, that contravenes the Department's 
current interpretation of the statutory prerequisite for when a country 
can be deemed oversubscribed and allocation of preference visas can be 
pro-rated: that the INA provision on pro-rating is based on a country's 
demand for more than seven percent of all preference visas, not one 
subcategory.
    As none of the NCA Countries are expected to exceed the per-country 
limit under INA 202(a)(2), 8 U.S.C. 1152(a)(2), there is no basis under 
the INA to set final action dates and dates for filing for employment-
based preference visas that are specific to those countries.

Julie Stufft,
Deputy Assistant Secretary for Visa Services, Bureau of Consular 
Affairs, Department of State.
[FR Doc. 2023-06252 Filed 3-27-23; 8:45 am]
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