February 25, 2019

There are statutory limits to the number of foreign nationals who may be granted permanent residency (“green cards”) each year under all employment-based categories, many family-based categories, and the Diversity Visa Lottery. The law allows a cumulative total of 140,000 immigrants per year from all employment-based (“EB”) categories. Each of the first three EB categories are limited to 28.6 percent of the total, or 40,040 each, which is then subject to a 7% per-country limit, resulting in a per-country total of 2802 per year, in each of the first three employment-based preference categories – Every country gets the same allocation. The statute also sets numerical caps on most family-based categories:  the law imposes annual limits of 23,400 for unmarried adult sons or daughters of US citizens, 114,200 for spouses and unmarried sons or daughters of permanent residents, 23,400 for married sons and daughters of US citizens, and 65,000 for siblings of US citizens. For all these types of green card cases, priority dates are used to determine when a foreign national is eligible to file an adjustment-of-status application (form I-485) if present in valid visa status in the United States, or submit an immigrant visa application to the National Visa Center and get scheduled for consular immigrant visa processing, if applying for an immigrant visa abroad.

Around the 12th of every month, the US Department of State publishes the Visa Bulletin. It shows which applications will be eligible to move forward in the upcoming month. Your case can move forward when the row for your immigrant visa category and the column for your country of birth in the Visa Bulletin show a date equal to or later than your priority date, or shows a “C”, meaning the whole category is current for that month. Although it does not always move forward in a linear fashion, the Visa Bulletin also allows you to estimate roughly how long it will take for your green card case to move to the final stage of processing, based on how fast the dates for your category are moving from month to month. However, the Visa Bulletin doesn’t always progress in an orderly fashion, and it can jump backwards (known as “retrogression”). You can check the Visa Bulletin regularly to watch your place in line.

The priority date for any employment-based (EB) green card case that requires a PERM labor certification is the date that the PERM case was filed and acknowledged as received by the U.S. Department of Labor (DOL). In any EB category that does not require labor certification, such as EB1 or NIW, the priority date is the date on which the immigrant petition was received by United States Citizenship and Immigration Services (USCIS). In any family-based (FB) preference case, the priority date is the date on which the petition for alien relative (Form I-130) was received by USCIS. Note that in immediate relative cases, filed for the spouse, parent, or minor child of a U.S. citizen, there is no preference quota, so the priority date is not important.

The dates listed in the Department of State’s monthly Visa Bulletin are known as cutoff dates. These cutoff dates must be compared to an individual’s priority date to determine whether s/he may file form I-485, obtain approval of an I-485, file immigrant visa application materials with the National Visa Center, and obtain an appointment for an immigrant visa interview at a US Embassy or Consulate abroad.

In October 2015, the State Department introduced a new dual-track system for applying priority dates. The visa bulletin now provides charts with separate sets of cutoff dates in both the EB and FB categories. One chart is designated as ‘final action’. The dates in this chart indicate when an I-485 application or immigrant visa may be approved for an applicant. The second chart is designated as ‘dates for filing’. For consular immigrant visa processing cases, these dates indicate “when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.” Each month, USCIS indicates on its website whether the Dates for Filing can also be used as a basis for filing an I-485 application, or whether prospective applicants for adjustment of status must use the chart for “Final Action Dates,” which is usually the case for employment-based applicants. Under this system, certain applicants are permitted to file their respective I-485s well in advance of green cards actually being available to them.

The visa bulletin cutoff date system is how the Department of State has elected to administer the statutory annual limits on the number of foreign nationals who can become U.S. permanent residents in most immigrant visa categories. However, there are features of the current system which are counterintuitive, depress the availability of immigrant visas, and could be changed without amending the law. For example, while immigrant visa availability in all preference categories is controlled by the month-to-month actual usage of visa numbers during a fiscal year, allocated among each of the EB and FB green card categories against the statutory totals allowed, there is no statutory mandate to count family dependents against the EB quotas, but that is what the Department of State & USCIS  do.

As a result of these quotas, individuals born in populous countries with high rates of immigration to the U.S., such as India, China, Mexico, and the Philippines, may experience much longer wait times for visa numbers in certain immigrant visa categories than individuals from countries with lower demand.