Department of State Changes to Interpretation of Law Impacts Youth Approved for SIJS

/ Adjustment of Status, SIJS, USCIS

The U.S. Department of State recently announced a change in interpretation regarding how they will allocate employment-based fourth preference (EB-4) visas for applicants from El Salvador, Guatemala, and Honduras. The changes are reflected in the April 2023 Visa Bulletin to correct the misapplication of the law in prior Visa Bulletins. Youth who are approved for Special Immigrant Juvenile Status (SIJS) frequently must wait years before their priority date is current and a visa is available for them to seek adjustment of status to become a lawful permanent resident. This change in interpretation impacts the time youth will wait their turn in line to become a green card holder.

Previously, the Department of State applied a 7% per country limit for applicants from El Salvador, Guatemala, and Honduras seeking EB-4 visas; however, as stated by the Department of State, “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 a result, in the April 2023 Visa Bulletin, those from El Salvador, Guatemala, and Honduras seeking a visa from the EB-4 category should look at the “All Chargeability Areas Except Those Listed” column in the charts for the final action dates and filing dates that represents the rest of the world from those countries specifically listed. The change in interpretation created changes in final action dates provided in the April 2023 Visa Bulletin with some forward movement for those from El Salvador, Guatemala, and Honduras and visa retrogression for youth from all other countries. The Department of State’s announcement on the change states, “Generally, applicants for whom the April 2023 final action date retrogressed should expect to wait longer for a visa to become available, as compared to the final action dates in the March 2023 Visa Bulletin, while applicants from El Salvador, Guatemala, and Honduras, for whom the April 2023 final action date advanced, should expect a shorter wait time.”

For cases that will no longer have a current priority date as of April 1, 2023, USCIS provides guidance on how they handle retrogressed cases in the USCIS Policy Manual, Vol. 7, Pt. A, Ch. 6. C.5. Additionally, USCIS can provide a discretionary grant of deferred action to any SIJS recipient who is unable to adjust status because an immigrant visa number is not currently available. 

This blog post provides a general overview of the changes and impact; the End SIJS Backlog Coalition provided a more comprehensive review in the “Practice Alert: April 2023 Visa Bulletin Changes Impacting SIJS Recipients,” which is a helpful resource for advocates navigating this change.

Learn more about the changes:

This is not legal advice. This resource is for informational purposes only and should not substitute your own research and analysis.