• November 2010

Inside the Immigrant Visa Allocation System

By Linda Rahal
Attorney / Owner / Founder
Trow & Rahal, P.C.

Ever wonder how immigrant visa numbers are allocated and priority dates are assigned?

In general, the date that an employer files a labor certification application under the PERM system for a foreign national employee becomes the foreign national’s “priority date.” This priority date determines a foreign national’s place in line for an immigrant visa.

Only a limited number of immigrant visas are available each government fiscal year. Once an immigrant visa number is available, the foreign national is able to file the last stage of the green card — typically the application to adjust status.

When there are more foreign nationals who want immigrant visas (green cards) than there are available, a backlog results and a “queue” is formed. The earlier a person’s priority date, the higher up he or she is in the queue. When a priority date reaches the front of the line, it is referred to as being “current.”

How fast visa numbers are available is limited by what date in the queue is being processed. The Visa Office of the U.S. Department of State establishes “cut-off dates” to slow or quicken the pace of the queue and publishes them in a monthly Visa Bulletin for both family-based and employment-based applications. Click here to view the Visa Bulletin.

Individuals with priority dates before the cut-off date can file for green cards; those after the cut-off date must wait for their priority date to become current.

As visa numbers are used by those ahead of the foreign national in the queue, the foreign national moves up closer to his or her turn to obtain a green card.

How are employment-based immigrant visas allocated?

The law authorizes 140,000 employment-based immigrant visas per fiscal year.

The most often used employment preference categories are EB-1 (multinational managers or persons of extraordinary ability), EB-2 (persons holding advanced degrees), and EB-3 (those holding a bachelor’s degree).

Each of these preference categories is allocated approximately 40,000 immigrant visa numbers. Immigrant visas are also limited by country, with no more than 7 percent allocated to individuals born in any given country.

Countries such as India, China, Mexico, and the Philippines are “oversubscribed,” which is when there are more applicants for immigrant visas than visas available. The remaining countries are grouped together and given a “worldwide” designation in the Visa Bulletin.

Recent improvement in family-based immigrant visa allocation

The law authorizes an annual family-sponsored limit of 226,000 visas. It is interesting to note that there has been significant forward movement in the family 2A preference category (spouses of U.S. Permanent Residents).

This is because foreign nationals who are eligible to file for their immigrant visa (green card) are not doing so, whether due to the downturn in the economy or simply because, after the long wait, they are no longer interested.

Predictions for employment-based immigrant visas

Charles Oppenheim, Chief of the Visa Control and Reporting Division of the Visa Office at the U.S. Department of State (DOS), spoke to a group of immigration attorneys in Washington, DC on September 22, 2010.

Oppenheim explained the process used to allocate immigrant visa numbers and assign cut-off dates. He made a few predictions regarding the progression of visa numbers over the upcoming fiscal year and shared why it isn’t easy to make accurate predictions about the use of immigrant visas.

Oppenheim is responsible for estimating how many foreign nationals are waiting for immigrant visas and for setting cut-off dates according to the anticipated demand.

Over the last few months, there has been significant forward movement in the cut-off dates for immigrant visas in the employment preference categories.

According to Oppenheim, this was done to ensure that all immigrant visa numbers allocated for the year were used by Sept. 30.

For the new fiscal year that began Oct 1, 2010, Oppenheim anticipates that there will be very limited forward movement in cutoff dates.

Immigrant Visa Forecast

1. Employment First Preference (EB-1). There are no anticipated backlogs for any countries.

2. Employment Second Preference (EB-2). There is no anticipated backlog for this preference category for foreign nationals from countries in the “worldwide” designation. However, significant backlogs are predicted for individuals from India and China. Oppenheim indicated that cut-off dates for foreign nationals from these countries would only advance in the next fiscal year by one to two weeks a month, if at all.

3. Employment Third Preference (EB-3). All countries, even those with the worldwide designation, are backlogged. Oppenheim anticipates little forward progress in the new fiscal year — perhaps one to two weeks a month, if at all.

Why it’s so difficult to predict immigrant visa availability

One reason is that Oppenheim can’t predict how many dependents are associated with a principal applicant for a green card (dependents are counted against the available number of immigrant visas).

Also, he can’t predict how many foreign nationals have “upgraded” their cases from EB-3 to EB-2 by filing a new labor certification application, which gives them a better position in the queue.

About Linda Rahal

Linda Rahal is an immigration attorney and the Chief Operating Officer of Trow & Rahal, and has been with the firm since its inception in 1993. Trow & Rahal represents companies and individuals in navigating the immigration process for visas, green cards, citizenship, and other immigration-related matters. The firm also assists companies in preparing corporate immigration policies, conducting I-9 and compliance audits, and developing immigration-related strategies for owners and employees.

Linda received her JD degree, magna cum laude, from the American University, Washington College of Law in 1992; and earned her BA degree, cum laude, in International Relations from Tufts University in 1986. Linda has been a member of the American Immigration Lawyers Association (AILA) for over 10 years. She is also a member of District of Columbia and Maryland Bar Associations, as well as the American Bar Association.

Linda’s reputation within the legal community has led to selection by her peers for inclusion in several prestigious publications, including The Best Lawyers in America, the International Who’s Who of Business Immigration Lawyers, and the Martindale-Hubbell Bar Register of Preeminent Lawyers.