1. The Immigrant Numerical Control System.

  • The Immigration and Nationality Act (INA) imposes annual numerical limits, or quotas, on the number of foreign nationals who may receive immigrant visas or who may otherwise acquire lawful permanent residence status. The numerical limitations are based on the particular immigration preference category and on per country limits.
  • As of fiscal year (FY) 2005, a maximum of 675,000 immigrants may be issued immigrant visas or otherwise granted the status of lawful permanent residents each year.
  • In addition to the annual cap of 675,000 immigrant visas available for issuance, the INA also limits the number of visas that may be distributed to natives of each country. The per country limitation on annual visa distribution for family sponsored and employment based immigration is 7 % of the total number of available visas.
  • The general numerical limitations apply to (i) family-based immigrants, (ii) employment-based immigrants, and (iii) diversity immigrants. The worldwide allotment of 675,000 is divided amongst these three groups.
  • The annual numerical limits do not apply to certain designated categories of immigrants. There are four main groups that are exempt from the worldwide numerical limitations: (i) immediate relatives of U.S. Citizens; (ii) special immigrants, which includes lawful permanent residents returning from a temporary trip abroad; (iii) refugees; and (iv) certain NACARA beneficiaries.

2. Immigrants Exempt from the General Numerical Restrictions.

  • Immediate Relatives of U.S. Citizens. The Immigration and Nationality Act defines Immediate Relatives to include immigrants in the following three groups:

(a) Children of U.S. citizens: the term “child” for immigration purposes means an unmarried person under 21 years of age.

(b) Spouses of U.S. citizens: to qualify as a spouse of a U.S. citizen, there must be a valid and subsisting marriage.

(c) Parents of U.S. citizens who are at least 21 years of age.

  • Special Immigrants: foreign nationals who previously were lawfully admitted for permanent residence and are returning from a temporary visit abroad.
  • Refugees: foreign nationals unable or unwilling to return to their home countries because of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
  • Certain NACARA Beneficiaries. The Nicaraguan Adjustment and Central American Relief Act (NACARA) provided relief from deportation or removal for certain Central Americans and Eastern Europeans.

3. Immigrants Subject to the Numerical Restrictions – Preference System.

(a) Employment-Based Immigrant Visa Preferences.

  • The annual cap for employment-based immigration is set at 140,000. This cap can be increased by the number of visas unused in the previous fiscal year from the family-sponsored allotment. The 140,000 visas allotted to employment-based immigrants are divided into five employment-based preference categories:
  • First Preference EB-1 Priority Workers: 40,000 annual visas are set aside for this preference, which provides visas for Workers with Extraordinary Ability, Outstanding Professors and Researchers, and certain Multinational Executives and Managers.
  • Second Preference EB-2 Professional and Exceptional Ability Workers: 40,000 annual visas are set aside for this preference, which provides visas for members of the professions holding advanced degrees and foreign nationals of exceptional ability in the sciences, arts, or business.
  • Third Preference EB-3 Skilled Workers and Professionals in Short Supply: 40,000 annual visas are set aside for this preference, which provides visas for professionals with baccalaureate degrees, skilled workers, and other (unskilled) workers. Only 10,000 of the visas of this annual allotment may be made available to “other workers” in this preference group.
  • Fourth Preference EB-4 Certain Special Immigrants: 10,000 annual visas are set aside for this preference, which provides visas for special preferred immigrant categories such as ministers, former officers or employees of international organizations, and former employees of the Panama Canal Company or Canal Zone government.
  • Fifth Preference EB-5 Employment Creation: 10,000 annual visas are set aside for this preference, which provides visas for entrepreneurs investing a certain amount of capital to set up a new business in the U.S.

(b) Family-Sponsored Immigrant Visa Preferences.

  • The annual cap for family-sponsored immigrants is 480,000. This cap can be increased by the number of visas unused in the previous fiscal year from the employment-based allotment. The number of immediate relatives admitted in one fiscal year is subtracted from the number of family-sponsored visas available for the following fiscal year. The 480,000 visas allotted to family-sponsored immigrants are divided into four family-sponsored preference categories:
  • First Family-Sponsored Preference: 23,400 annual visas are set aside for this preference, which provides visas for unmarried sons and daughters of U.S. citizens (who do not qualify as immediate relatives of citizens because they are twenty-one or older).
  • Second Family-Sponsored Preference: 114,200 annual visas are set aside for this preference, which provides visas for spouses and unmarried sons and daughters of permanent residents.
  • Third Family-Sponsored Preference: 23,400 annual visas are set aside for this preference, which provides visas for married sons and daughters of U.S. citizens.
  • Fourth Family-Sponsored Preference: 65,000 annual visas are set aside for this preference, which provides visas for the brothers and sisters of adult U.S. citizens.

(c) Diversity Immigrant Visas.

  • Diversity Immigrant Program: 55,000 annual visas are set aside for the diversity immigrant category. Under the diversity program, the world is divided into “low-admission” and “high-admission” regions. Visas are assigned to each region based on a formula, and only low-admission states within each region are eligible to draw on those visas. Visas are then distributed based on a random selection from all applications submitted during each fiscal year.

4. Priority Dates and Allocation of Visa Numbers for Immigrant Visas.

  • The limited number of immigrant visas available for the family sponsored and employment based immigrant categories are dispersed on a “first come, first served” basis. A Priority Date is assigned to each immigrant visa petition and establishes the prospective immigrant’s place in line for a visa. Priority dates are used to determine when a visa applicant may move forward with the last step for lawful permanent residence: Filing an Application to Adjust Status or Obtaining an Immigrant Visa at a U.S. Consulate Abroad.
  • Priority Dates for Employment-based Preference Petitions: If the petition is based upon an individual labor certification, the priority date is the date on which the labor certification was accepted for processing by the Department of Labor. In a case that does not require a labor certification the priority date is the date the petition is properly filed with USCIS. Priority Dates for Family-sponsored Preference Petitions: The priority date of the petition is the date on which the completed, signed petition is properly filed with USCIS.
  • “First Come, First Served”: The U.S. Department of State allocates immigrant visa numbers for use in connection with the issuance of immigrant visas and adjustments of status based on the chronological order of the priority dates of visa applicants classified under the family sponsored and employment based immigrant categories. Immigrant visa numbers are allocated randomly under the diversity visa program.
  • Spouses and Children: if not otherwise entitled to immigrant status and immediate issuance of a visa, the spouse or children of a principal immigrant are entitled to the same status and the same priority date of the visa applicant if accompanying or following to join.
  • Substitution of Employees: Once a labor certification has been approved, an employer may substitute the initial visa applicant with another employee. Although the certification remains valid, the substituted employee does not retain the original priority date, but rather is assigned a priority date as of the date the employer requested the substitution.

5. Administration of Visa Numbers and Quota Backlogs.

(a) Determination of Immigrant Visa Demand:

  • At the end of each month, Consular officers report to the Department of State’s Visa Office lists of the number of qualified applicants in the immigrant categories subject to numerical limitations. Similarly, USCIS reports the number of applicants qualified for adjustment of status.
  • The Visa Office then groups these lists into foreign state chargeability, immigrant preference category, and priority date.
  • Rules of Foreign State Chargeability: a visa applicant’s country of chargeability is the country the applicant was born in. An applicant’s spouse’s country of birth may also be used to determine chargeability.

(b) Determination of Visa Number Availability:

  • The numbers of qualifying applicants reported to the Visa Office are then compared to the numbers available for the monthly allotment of visa numbers permitted under the INA’s immigrant preference and foreign state numerical limitations.
  • If there are sufficient visa numbers in a particular category to satisfy the demand for visas in that category, the Visa Office will consider the category “Current.” In this scenario, the visa applicant can apply for adjustment of status or for an immigrant visa abroad.
  • The improved processing of immigrant petitions by USCIS and of labor certifications by the Department of Labor has created an increase in the demand for immigrant visa numbers. Because there is a limited supply of visa numbers available each year, the increased demand for visas has caused backlogs in several categories.

(c) Quota Backlogs and Retrogression:

  • Whenever the demand for immigrant visas in a particular category exceeds the supply of numbers available for the month, the category is considered “Oversubscribed” and the Visa Office will establish a “Cut-Off Date” for the category. This means there is a “Quota Backlog” for the particular category.
  • The Cut-Off Date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the Cut-Off Date may be allotted a visa number.
  • When a category is Oversubscribed, that is, there is a Quota Backlog, a waiting list is created and visa applicants are placed on the list according to their priority dates. Individuals will then have to wait for their priority dates to be reached, that is, become Current, before they may complete the final step for the issuance of a visa.
  • Quota Backlogs have also resulted in the retrogression of the Visa Bulletin dates for some Family-sponsored Preference Petitions and Employment Based Preference Petitions. This means that the Visa Bulletin dates for some categories may move backward.
  • The U.S. Department of State’s Visa Bulletin summarizes the availability of immigrant numbers for each month. Visa applicants may check the dates listed on the Visa Bulletin in order to determine when they may file for their Green Card.

6. Helpful Advice for Immigrant Visa Applicants, Backlogs and Retrogression.

  • Alternate Foreign State Chargeability: If a visa applicant is facing a Quota Backlog due to the foreign state numerical limitations, he or she may be eligible for a visa number under an alternate country. The visa applicant may be charged to his or her spouse’s birth country if it is not subject to a cut-off date.
  • Subsequent Immigrant Petition in Employment-based Classifications: a priority date accorded by approval of an employment-based first, second or third preference petition is retained by the beneficiary for any other first, second or third preference petition approved subsequently for the same beneficiary. In all cases, the beneficiary of multiple petitions is entitled to the earliest of the filing dates of the various petitions. A priority date established in the employment-based first, second or third preference category, however, is not transferable to employment-based fourth or fifth preference petitions or to a family-sponsored petition.
  • Visa Applicants in H-1B status (and qualifying H-4 dependents): Visa applicants who have an approved I-140 petition and who are prevented from filing an adjustment of status application due to the worldwide or per-country numerical limitations may be granted an extension of H-1B status in three-year increments pending eligibility to apply for adjustment of status. There is no requirement that the visa applicant have a labor certification or visa petition pending for one full year prior to the expiration of the sixth year of H-1B status, but, there must be an approved I-140 to access this benefit. This protection does not apply to the children of the visa applicant when the children reach 21.
  • Visa Applicants in H-1B status (and qualifying H-4 dependents): Visa applicants who have a labor certification or I-140 petition pending for more than 365 days may be able to obtain one-year extensions of their H-1B status.
  • EAD’s and Advance Parole: If a person has filed an I-485 application for adjustment of status when the dates were current, but then the Visa Bulletin date retrogressed to a date before the priority date, the foreign national will remain eligible for Employment Authorization Documents and I-512 Advance Parole documents, even after completing the six years on H-1B status in the U.S. However, the I-485 cannot be approved until the date again becomes current.

7. References.

Revised April 24, 2007.