Lynn Greening, Attorney at Law (lgreening@hooyou.com)

The U.S. Department of State released the new Visa Bulletin for April 2010 on March 9.  The U.S. immigration system does not allow applicants from one country to exceed 7% of the total employment-based and family-sponsored visa numbers per year.  While the math associated with the overall numbers changes yearly for family-sponsored visa numbers, there are always at least 226,000 visa numbers available.  The employment-based category as at least 140,000 visa numbers available each year.  In the employment-based category, the first, second and third preference levels each have 40,040 visa numbers available, while the fourth and fifth preference levels each have 9,940 visa numbers available.  For oversubscribed countries, such as mainland China, India, Mexico, and the Philippines, are thus limited to 7% of the visa numbers available at each preference level.  This limit results in 2,803 visa numbers per oversubscribed country being available for each of the first, second and third preferences in the employment-based category.  The overall result means that there is the maximum possibility of visa numbers of approximately 25,620 for each country every year.

While the above numbers seem somewhat restrictive, especially for employment-based categories, there are a number of exceptions to keep in mind.  The U.S. Department of State allocates a set number of visa numbers in each preference level category.  However, they also reallocate these numbers based on demand at each preference level.  The numbers in both the family-based and employment-based preference levels roll down, meaning that the unused numbers from a preference level can be used by the next lower preference level.  However, the unused numbers from the lowest preference levels roll up to the first preference level.  For family-sponsored visas, the second preference level can use unused first preference numbers, the third level can use unused first and second preferences numbers and the fourth level can use the unused numbers from the first, second and third preference levels. However, the first preference level gets the unused numbers from the forth preference level.  For the employment-based category, the second preference level gets the unused visa numbers from the first preference level, the third preference level gets the unused numbers from the first and second level, and the first preference level can use the unused numbers from the fourth and fifth preference levels. The fourth and fifth preference levels under the employment-based category do NOT get additional visa numbers from the first through third preferences. 

It is also important to note that 75% of the Spouses and Children under the family-sponsored category, second preference level, do not count towards the 7% per-country limit.  Further, in the employment-based category, INA Section 202(a)(5) removes the per-country limit every quarter when demand for an employment-based preference is below the worldwide numbers available.  This new law allows visa unused visa numbers to be handed out without consideration of the applicant’s country of origin.  While the extra visa numbers will count toward the 7% cap for an undersubscribed country, they are not added to the 7% total of an oversubscribed country.  Therefore, the employment-based visa numbers reallocated under INA Section 202(a)(5) do not count towards an oversubscribed country’s 7% cap, enabling more applicants from countries such as mainland China and India to receive more than 7% of employment-based visas.  Therefore, it is possible for a country to exceed the 25,620 applicant per country cap.

When filing an immigrant petition (either I-140 or PERM labor certification), an applicant receives a priority date, which is the date they originally filed.  This priority date is important if the category of visa the applicant qualifies for is ”not current” or has a “cut-off date”, which means there are too many applicants and the alien applicant has to wait for a visa number to become available.  If there is a cutoff date on the appropriate chart on the Visa Bulletin, it means that not enough visa numbers are available for all applicants.  If an applicant’s priority date is before the date listed on the chart, then a visa number is available and the applicant is eligible to submit I-485 adjustment of status and receive approval of permanent residency.  If your priority date is on the dated listed or after the date listed, a number is not yet available. If there is a “C” in the category, the numbers are current and there is a visa number available to all applicants in that category.

Family-Sponsored Preferences. 

Family-sponsored immigration has approximately 226,000 visa numbers available worldwide each year.  It is important to note that the U.S. Department of State can redistribute the unused visa numbers in each preference level to other Family-Sponsored Preference levels.  Further, the Second Preference, which is for Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents, is allocated the highest number of Family-Sponsored visas.  Under this category, a child is an unmarried person under the age of 21.  In addition, 75% of the visas issued to spouses and children under the age of 21 (level 2A), do not count toward the 7% limit placed on each country.  This means it is possible for immigrants from a single country to exceed the 7% limit under this category. 

Employment-Based Preferences. 

The categories for Employment-Based Preferences are similar to Family-Sponsored Preferences in that they allow for redistribution of numbers for categories that have high demand from categories where the numbers are unused in each quarter.  These unused numbers are handed out based on priority date of the applicant, and does not consider the applicants country of origin.  The Employment-Based Preference category has approximately 140,000 visa numbers available each year.

The First Preference consists of priority workers, which include Persons of Extraordinary Ability (EB-1(a)), Outstanding Professors and Researchers (EB-1(b)), and Multinational Transferees at Managerial or Executive positions (EB-1(c)).  Persons of Extraordinary Ability are those with extraordinary ability whose achievements are recognized nationally or internationally, who seeks to continue working in their field of extraordinary ability in the U.S., and whose entry will substantially benefit the U.S.  An applicant does not need a permanent job offer to apply under the EB-1(a) Persons of Extraordinary Ability category.  The EB-1(b) Outstanding Professors and Researchers category requires international recognition in an academic area, at least 3 years experience in teaching or research in the recognized area, and a permanent offer of employment.  No labor certification is required for an EB-1(b).  Also under the First Preference category is EB-1(c), which is Multinational Executives and Manages.  Applicants in this category must work in a managerial or executive capacity, must have been employed abroad for one year of the last 3 years, and is seeking to enter the U.S. to work for the same U.S. organization or subsidiary.  A job offer is required, but labor certification is not.  The Visa Bulletin lists all Employment-Based First Preference categories as “C”, which means current.  There are numbers available for all applicants.

The Second Preference in the Employment-Based grouping consists of Advanced Degree Holders and Persons of Exceptional Ability (EB-2).  An advanced degree is the equivalent of a baccalaureate degree and five years of specialty experience equivalent to a master’s degree.  A person of exceptional ability is someone whose expertise in their area is significantly above their peers.  In general, applicants in this second category must have a job offer and go through labor certification, unless they petition for a National Interest Waiver (NIW).  To succeed with a NIW petition, the applicant must be seeking employment in an area that has substantial intrinsic merit, that will be national in scope, and where requiring a labor certification would adversely affect the national interest.  In regards to medical professionals, foreign medical graduates are not allowed to enter the U.S. in order to practice medicine unless they meet certain requirements. Therefore, entry under EB-2 may be restricted.  In addition, USCIS often considers registered nurses to be skilled workers or professionals under EB-3 instead of advanced degree holders because an advanced degree is not required to be a registered nurse.  However, some nurses to qualify under EB-2.  The EB-2 category of Employment-Based visas is current for all countries except China and India, which have priority dates of August 22, 2005 and February 1, 2005, respectively.  While the date for applicants from China moved forward, the date for applicants from India stayed the same as it had in March.

The Third Preference of Employment-Based Preferences consists of Professionals, Skilled and Other Workers (EB-3).  This is a nearly all-encompassing category and includes baccalaureate degree holders who are a member of a profession, skilled workers with two years of training or work experience, and others with less than two years of training or experience.  Labor certification is required.  The priority dates for professionals and skilled workers under EB-3 has most countries, China and the Philippines moving forward by approximately 2 months, to February 1, 2003.  India moved forward to September 8, 2001.  However, Mexico remained unchanged with a date of July 1, 2002.  In the “other worker” category, the date remained the same for all countries at June 1, 2001. 

The Fourth and Fifth Preference Categories are current, which means visa numbers are available.  The Fourth Preference consists of special immigrants, such as religious workers, some U.S. employees abroad, those trying to reacquire U.S. citizenship and Panama Canal Treaty employees, just to name a few.  The Fifth Preference category is set aside for investors who create jobs for U.S. citizens or legal permanent residents of the U.S.  The investor requirements consist of investment amount criteria and job creation criteria.  However, an Immigrant Investor Pilot Program relaxes the job creation requirements, but does not eliminate it and certain other programs targeted at employment areas and regional centers.