1. The immigrant Visa Number and the U.S. Department of State's Visa Bulletin

The U.S. Immigration and Nationality Act (INA) limits the number of immigrant visas that can be issued each year. As a result, the U.S. Department of State regulates the immigrant visa numbers to ensure that the annual statutory limit is not exceeded. 

Each month, the U.S. Department of State announces whether immigrant visas are available to beneficiaries of the various employment-based and family-based immigrant visa categories. This announcement is made through the U.S. Department of State Visa Bulletin. 

The beneficiary of a labor certification or immigrant visa petition is given a “priority date” for obtaining an immigrant visa based on when the labor certification or immigration visa petition (Form I-140 or I-130) was filed. When the U.S. Department of State determines that the current rate of demand might lead to too many visas being issued, it imposes cut-offs based on these priority dates. When a cut-off date is imposed, it means that only individuals with priority dates earlier than the dates listed are eligible to apply for U.S. permanent residence.

To view the most recent immigrant visa availability, refer to the U.S. Department of State Visa Bulletin. A column marked “C” indicates current status and that there is no quota backlog for this category. If the country in which the alien was born is marked with a “C”, you may file an I-485 adjustment of status, or be eligible for consular processing. If the country in which the alien was born is marked with a “U”, it means the immigrant visa number is not available. 

2. The Preference Classes for Employment-based and Family-based Immigration

Preference Classes are numbered categories which define types of immigrant visas. There are separate sets of preference classes for employment-based immigration and family-based immigration. An immigrant case must fit into one of the preference classes for an immigrant petition to be approvable, and the preference class must be indicated on the form filed for the immigrant petition - the I-140 for employment-based petitions, and the I-130 for family-based petitions. 

The preference classes for employment-based I-140 immigrant visa petitions are:

• First Preference: Alien of Extraordinary Ability, Outstanding Researcher or Professor, and Multinational Executive or Manager.

• Second Preference: Advanced Degree Professional (job requires at least a Master's degree), Alien of Exceptional Ability, and National Interest Waiver (NIW).

• Third Preference: Professional (job requires at least a four-year Bachelor's degree); Skilled Worker (job requires at least two years of experience).

• Fourth Preference: "Special Immigrants" - 11 different rarely-arising situations.

• Fifth Preference: Alien Investors - those creating U.S. Employment Opportunities.

The preference classes for family-based I-130 petition for alien relatives are:

• First Preference: Unmarried Sons and Daughters of U.S. Citizens.

• Second Preference Part "A": Spouses and Children (under 21 years of age) of U.S. Permanent Residents.

• Second Preference Part "B": Unmarried Sons and Daughters (over 21 years of age) of U.S. Permanent Residents.

• Third Preference: Married Sons and Daughters of U.S. Citizens.

• Fourth Preference: Brothers and Sisters of U.S. Citizens.

3. Understanding the Priority Date

The priority date is the date the first application for permanent residence is filed with a government agency. For an employer-sponsored case, this is either the date a Labor Certification is first filed with the Department of Labor, or the date of I-140 petition for a Labor Certification waiver case, such as EB1 or NIW. For a family-sponsored case, this will be the date the I-130 petition for alien relative is filed.

The Priority Date establishes the foreign national's place on line for an immigrant visa. There are limited numbers of immigrant visas available for each of the various categories. These categories are called "Preference Classes." Each preference class has its own queue for immigrant visas, and the priority date and the preference class of the petition determine how long the person being petitioned for has to wait for a Green Card.  

If your priority date is before the date listed for your category and you have an approved I-140 petition, you may file an I-485 adjustment of status application; or be eligible for an immigrant visa if you are processing your change of status through a U.S. consulate in your home country instead of filing an I-485 adjustment of status application with USCIS. 

If your priority date is on or after the date listed for your category, you cannot file your I-485 adjustment of status or get an immigrant visa at a U.S. consulate at this time. You need to maintain your current immigration status to remain in the U.S. There is no way to get ahead on the priority date list other than filing an immigrant visa petition in a higher preference category, if you are qualified.

4. The Country of Birth vs. the Current Citizenship

The country to which a foreign national is "charged" is the foreign national's country of birth, not the current country of citizenship or nationality. Countries which often become oversubscribed more often than most other countries include India, Mexico, Philippine, and China. The immigrant visa availability for these countries is broken out separately by the U.S. State Department on its visa bulletin web site.

The visa numbers are based on your country of birth, regardless of your current citizenship. However, if your spouse was born in another country that is not subject to the backlog at this time, you will be able to “cross-charge” your I-485 adjustment of status application to your spouse's country. This is known as “alternate chargeability”. This is only possible if both you and your spouse's I-485 are filed at the same time. If your child was born in a third country, you cannot use your child's country of birth for this purpose.

 

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