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By Billal Rahman
Immigration Reporter
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Some employment-based green card applicants could face new delays in receiving permanent residency if visa numbers run out before September 30, after the State Department warned that several categories are at risk of becoming unavailable before the end of the fiscal year.
The warning specifically puts EB-1 India on notice that the category could become unavailable before September 30. EB-2 India and EB-5 unreserved India are already unavailable, while the State Department says other employment-based categories could face retrogression or unavailability if demand causes their limits to be reached.
Who Could Be Affected?
The September Visa Bulletin lists a final action date of October 15, 2022, for EB-1 India. The State Department warned that the category could become unavailable if the remaining visa numbers are exhausted before September 30.
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EB-2 India and EB-5 unreserved India are already unavailable. The State Department announced in May that the India per-country limit for EB-2 had been reached, followed by an announcement in June that the India per-country limit for EB-5 unreserved had been reached.
For other applicants, EB-2 and EB-5 unreserved remain available under the September bulletin, but the State Department has warned that high demand could lead to further restrictions before September 30.
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What Happens if a Category Runs Out
When an employment-based category becomes unavailable, the government cannot issue additional immigrant visas in that category for the remainder of the fiscal year.
That does not automatically cancel an approved immigrant petition or permanently end an applicant's green card case. For adjustment-of-status applicants in the United States, a case may remain pending until an immigrant visa number becomes available.
For applicants pursuing immigrant visas through consular processing, however, a visa cannot be issued while the applicable category is unavailable.
Why September 30 Matters
Fiscal year 2026 ends on September 30, with fiscal year 2027 beginning October 1.
The new fiscal year brings new annual visa limits, but it does not guarantee that cutoff dates will immediately return to earlier levels. Future availability depends on demand, the number of visas available, and how quickly those numbers are used.
Immigration attorney Nandini Nair told Newsweek that applicants whose cases are otherwise ready for approval can still be stopped when visa numbers run out. "For most applicants, the case is not denied or lost—it is put on hold at the finish line until a visa number becomes available again," Nair said.
"For applicants who have waited years, sometimes decades, the frustrating reality is that even an otherwise fully approvable green card can be stopped simply because the government ran out of numbers before September 30."
New Public Charge Comes Into Effect
A separate green card-related change takes effect September 18, when new Department of Homeland Security rules governing the public-charge ground of inadmissibility take effect.
The change applies to covered Forms I-485 postmarked or submitted electronically on or after that date and governs how officers determine whether an adjustment-of-status applicant is likely to become a public charge.
USCIS says officers must consider factors including an applicant's age, health, family status, assets, resources and financial status, and education and skills.
For means-tested benefits received on or after September 18, the agency said officers may consider "any and all" such benefits as part of a case-by-case assessment of the totality of the applicant’s circumstances. Benefits received before that date will be considered under the narrower standard described in the guidance.
The policy applies to many family- and employment-based green card applicants, including relatives of U.S. citizens, spouses and children of lawful permanent residents, employment-based immigrants, diversity visa recipients and religious workers.
Refugees, asylees, certain trafficking and crime victims, Violence Against Women Act self-petitioners, and special immigrant juveniles are among the categories exempt from the public-charge provisions.
On the public-charge changes, Nair said the new rules do not mean that receiving public benefits automatically results in a denial. "The September 18 change does not create an automatic ‘benefits equal denial’ rule, but it does give USCIS officers a wider lens, and potentially more discretion to examine an applicant’s life and finances," she said. "I think the biggest misconception is that using a public benefit automatically kills a green card case, it does not."
Nair said benefits that previously might not have been viewed as relevant to an immigration case could now become part of the assessment, making financial history and preparation more important for applicants subject to the public-charge ground.
Contact Newsweek editors on this story: Matthew Cannon and James Debens
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