The Immigration and Naturalization Act (INA) provides for an annual worldwide limit of 675,000 permanent immigrants, with certain exceptions for close family members. Congress and the President determine a separate number for refugee admissions based on the following principles: the reunification of families, admitting immigrants with skills that are valuable to the U.S. economy, protecting refugees, and promoting diversity.

The “Visa Bulletin” is issued by the U.S. Department of State (DOS). It is a monthly bulletin that summarizes the availability of immigrant numbers for: “Application Final Action Dates” (consistent with prior Visa Bulletins) and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Each month, the DOS explains key aspects of the visa bulletin contents through Charles Oppenheim, Chief of the Visa Control and Reporting Division. Mr. Oppenheim also provides information on the creation of a new list for cases pending at the National Visa Center. The Visa Bulletin contains information about a National Visa Center (NVC) waiting list. This list will be for cases pending at the NVC as of a certain date. The NVC is involved in processing cases for foreign nationals who want to consular process (apply for an immigrant visa at a U.S. consulate abroad). The NVC is not involved with adjustment of status (I-485) filings (apply for a green card with USCIS).

The maximum number of visas issued per fiscal year (which runs from October 1st to September 30th) is divided into three categories: family-sponsored, employment-based, and diversity immigrants. The “Priority Date” is this date is the key to determining the order of visa availability. For employment-based immigration, the PD is either the date the labor certification is filed with the Dept. of Labor (for 2nd or 3rd preference); or the date the I-140 is filed with USCIS (for 1st preference or any category not needing a labor certification).

Employment-Based Immigrant Visas

There are 140,000 Employment-Based visas (plus unused family visas). There are 50,000 Diversity Immigrant visas (55,000 less up to 5,000 per NACARA). In Diversity Visa cases, the applicant spouse may be charged to the non-applicant’s spouse’s country of birth to allow the applicant to qualify for DV as long as the parties were married prior to filing the lottery entry, and their visas are issued and they apply for admission simultaneously.

The employment-based category include the following preferences:

• First Preference: Persons of extraordinary ability” in the arts, science, education, business, or athletics; outstanding professors and researchers, some multinational executives (40,000 Plus any unused visas from the 4th and 5th preferences)
• Second Preference: Members of the professions holding advanced degrees, or persons of exceptional abilities in the arts, science, or business (40,000 Plus any unused visas from the 1st preference)
• Third Preference: Skilled workers with at least two years of training or experience, professionals with college degrees, or “other” workers for unskilled labor that is not temporary or seasonal (10,000)
• Fourth Preference: Certain “special immigrants” including religious workers, employees of U.S. foreign service posts, former U.S. government employees and other classes of aliens
• Fifth Preference: Persons who will invest $500,000 to $1 million in a job-creating enterprise that employs at least 10 full time U.S. workers (10,000)

Below is a pie chart that reflects percentages for each preference-based category.

A foreign national is chargeable to the country of birth, not the country of citizenship or nationality. “Foreign State Chargeability” is the determination as to which country’s quota the foreign national’s visa gets “charged to.” Chargeability can make a huge difference between being able to apply for a green card or not (due to availability of immigrant visas). Chargeability is also important especially where countries are oversubscribed (e.g. China and India).

There is a concept called “cross-chargeability” that can happen in four situations:

• A child may be charged to a foreign state of either parent (when accompanying or following to join);
• A spouse may be charged to the state of an accompanying spouse;
• A USC who lost citizenship charged to country of current citizenship or, if citizenship is non-existent, to the country of last residence; and
• When a foreign national is born where neither parent was born or resided, he or she may be charged to the foreign state of either parent (no accompanying requirement).

 

For example, if the primary applicant is a citizen of China (which is backlogged) and the spouse is a citizen of United Kingdom, then the couple could file under United Kingdom’s quota (which is current). Cross-chargeability is extremely helpful since it allows both foreign nationals to obtain their green cards faster.

 

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