Immigrant Visas Available Under the Annual Quota

There are two components involved in the allocation of immigrant visas under the annual quota: supply (the availability of visas allocated by law) and demand (the actual usage of visas under the annual quota). The two components are equally important, but are vastly different in concept. The purpose of this article is to explain the nature of the more or less inflexible supply side of the equation. In order to keep this discussion manageable, its scope will be limited to employment based visas only.

Section 201(d) of the Immigration and Nationality Act (the Act) authorizes 140,000 employment based immigrant visas per fiscal year (October 1st through September 30st. This number may be increased if not all of the visas available in the family based quota are used. In that case, the unused numbers become available to employment based visa applicants. Since all family based preference categories are backlogged, there is little likelihood of this occurring in the near future. For this discussion, we will use a fixed 140,000 figure for all calculations. The 140,000 quota includes the spouses and dependants of principal employment based applicants. Dependants are charged to the same preference classification as the principal and count against the maximum limit for each such category. If employment based applicants and their dependants do not use all of the allocated 140,000 visas in a single fiscal year, the left over numbers are wasted – they do not carry forward into the next year. For this reason, the next article’s discussion of “demand” will show why this supply can be artificially reduced.

Within the overall quota, there are five preference categories – each with its own guaranteed allocation. The first through third preference categories are each guaranteed 28.6 % of the total number of visas available under the quota. Where the quota is 140,000, this comes to roughly 40,000 for each of these categories. The fourth and fifth preference categories each receive a guaranteed allocation of 7.1% (or roughly 9,940 visas each).

Visas unused by first preference applicants fall down and become available to second preference applicants. Visas unused by second preference applicants fall down and become available to third preference applicants. There is no fall down into fourth or fifth preference, although unused visas by those categories “fall up” into first preference and from there fall down into the second and third preferences.

There is a further limit, within this quota, for persons born in countries where there is significant demand. Natives of a single foreign state may not use more than 7% of the worldwide quota (approximately 9,800 visas). This is not a separate allocation, but rather a limitation within the worldwide quota. Once demand from the natives of a single state reaches the 7% limit, no further visas may be issued to applicants from that country unless there is “fall across” from the worldwide quota. If, for example, worldwide second preference does not use all of its allocation of visas, the remainder first "fall across" to the second preference applicants in any single state limited countries for which there are backlogs. Only after all second preference demand, from all countries, has been satisfied do numbers then "fall down" into the worldwide third preference category.

If it appears that a country will reach the 7% limit, the State Department will allocate the 9,800 visas according to the percentages reserved for the various preference categories. A country can reach the maximum limit through family based or employment based. For example, the Philippines reaches the maximum number through family based immigration and this is why the employment based cutoff dates for the Philippines are identical to the worldwide cutoff dates. Other countries, such as India and China reach the per country limit largely on the basis of employment based applications.

For load balancing purposes, the law provides that no more than 27% of the available visas may be issued in any of the first three fiscal quarters. This also applies to countries that are subject to the per country limit. Let’s take a quick look at how this breaks down numerically (in theory):

There are several things to keep in mind when thinking about these numbers. First, this is the theoretical application of numbers to categories. In reality, things are a bit different. Unused numbers from the first three quarters are returned to the State Department for allocation in the fourth quarter. As a result, historically, about 40% of all immigrant visas are issued in the fourth quarter of the fiscal year.

Second, this table does not accurately reflect “fall down” in the first three preferences, “fall up” from the fourth and fifth up to the first, and “fall across” from worldwide to the single state maximum limit countries.

All in all, however, it does give you a very rough idea as to the actual numbers that are in play and how a large, unexpected surge of qualified applicants can change things significantly. Recall that applicants are inserted into the waiting list chronologically by priority date. This means that someone with a long delayed I-140 petition can go into the line several years “earlier” than others who filed more recently. The same is true for people who are able to recapture priority dates from earlier approved, but unused I-140 petitions filed on their behalf by former employers.

This is the supply side of the equation. It is relatively fixed and inflexible. It is important to understand, however, that this supply can be artificially reduced by insufficient demand – largely as a result of USCIS inefficiency.

Having discussed the nature of the supply of immigrant visa numbers and how it is relatively fixed. We will next discuss the demand that is made on the available supply of visa numbers.

Approximately 85% of all employment based immigrants (both principals and dependants) apply for lawful permanent resident status through the mechanism of applications for adjustment of status (AOS). The remaining 15% apply through the overseas consular processing (CP) procedure. As a consequence of this phenomenon, USCIS productivity drives immigrant visa demand.

Let’s look at two extreme examples to illustrate this point. We know that the annual supply of employment based immigrant visas is 140,000. Presently, there are an unknown number of pending AOS applications on file with the USCIS. As of September, 2009, we know that the USCIS has reported about 155,000 "pre-adjudicated" (pre-approved) AOS cases. Of these, approximately 52,000 are employment based (EB) second preference cases, 102,000 are EB third preference cases, and about 1,000 are EB third preference "other worker" cases. The 50,000 second preference cases are almost entirely from China (13,000) and India (39,000). The 102,000 EB third preference cases are also principally from China (5,300) and India (48,000).

If the USCIS only adjudicates 80.000 AOS applications in a fiscal year, the prospective demand is reduced to 320,000 at that moment, but the actual demand is only 80,000. The remaining 320,000 are still in line, but the visa quota has only been reduced by 80,000 for that fiscal year. This leaves 60,000 unused employment based visa numbers available for the balance of the fiscal year.

The only other player in this game is the Department of State. Since the vast majority of prospective immigrants insist on using AOS, even if the Department of State’s overseas consular posts issue visas to everyone who has applied through their offices, tens of thousands of visa numbers will remain unused at the end of the fiscal year.

For purposes of calculating visa preference cutoff dates in the example just cited, the remaining 320,000 AOS cases pending with the USCIS are largely invisible. While they represent potential demand, they do not become actual demand until the USCIS orders a visa number for one or more of these cases while approving them and closing them out.

It is possible to have an enormous backlog of potential demand while at the same time having actual demand that is less than the available supply. In fiscal year 2006, for example, due to the inability of the USCIS to process to completion a sufficient number of AOS applications, approximately 13,000 authorized employment based visa numbers were unused and thus wasted. To put it another way, 13,000 cases that should have been closed and counted against the 2006 quota were not adjudicated and now those same 13,000 cases must be counted against a future quota. When the USCIS fails to adjudicate enough cases to exhaust the annual quota, the result is that potential demand increases by the number of visas wasted by USCIS inaction.

Right now, the USCIS is being secretive about the backlog of pending AOS cases. The backlog has grown to obscene proportions and they are justifiably sensitive about it. Consequently, they began concealing these statistics a couple of years ago. They also redefined the term “backlog” to artificially reduce the numbers.

Not wishing to beat a dead horse, but the issue of USCIS productivity cannot be emphasized enough. Unless and until the USCIS begins processing sufficient number of AOS cases, there will always be insufficient demand to exhaust the annual quota.

As will be discussed at greater length in the next article, the Visa Office of the Department of State (which has exclusive jurisdiction over allocation of visas) does take potential demand into account. Last year, for example, the Visa Office expressed concerns about the potential demand resulting from the Department of Labor’s backlog reduction centers’ completion of up to 100,000 pending labor certifications.

Because these cases had been filed in the 2001-2005 period, there was a significant likelihood that a very large number of cases with “old” priority dates would be entered into the system suddenly. This, in turn, could cause the retrogression of Visa Bulletin cutoff dates. This will be explained in detail in the next article. For now, simply accept as fact that the Visa Office was concerned about this substantial potential demand. As a result, they were cautious in moving cutoff dates forward until they learned that the actual number of such cases was less than 10,000.

Each year, the USCIS makes grandiose promises that they will process record numbers of AOS cases as a result of improvements that they have made in their system. In the past, the Visa Office has accepted these representations. Last year, however, the Visa Office committed to making sure that no visas under the quota would be wasted. What happened is an interesting example of the interaction between supply and demand.

In fiscal year 2007, the USCIS was not adjudicating cases fast enough to avoid wasting a substantial number of visas under the annual quota. The USCIS Ombudsman warned in this 2007 Annual Report to Congress that:

“Based on USUSCIS use of visa numbers as of May 2007, at present consumption rates approximately 40,000 visas will be lost in FY 07 without a dramatic increase in USUSCIS requests of visa numbers.”

In order to assure that a sufficient number of employment based green card applications were received and acted upon, the Visa Office had to advance cutoff dates to the point where everything became current. Recall that approximately 85% of all employment based green card applicants use the AOS process rather than CP.

While it was clear that advancing cutoff dates would result in substantial new AOS filings, this was necessary in order to ensure that enough consular filings were also made. The difference between the USCIS processing shortfall, and the maximum quota allocation was the immigrant visa application cases processed by consular posts overseas.

Roughly speaking, in order to get 40,000 additional applications filed overseas, they had to advance cutoff dates to the point where approximately 270,000 applicants would become eligible to file. In fact, about 300,000 people applied for adjustment of status when all priority dates became current. More importantly, enough people filed consular processing applications to exhaust fully the annual quota so that no visa numbers were wasted.

Looking forward, we can pretty much ignore the massive USCIS backlog of potential demand cases and concentrate instead on the actual demand. If the USCIS is adjudicating AOS cases at its customary pace, then demand will once again be insufficient to exhaust the available supply. On the other hand, if the USCIS has stepped up its pace of adjudications, then they certainly have enough cases in their backlog to use up all available visas.

The tip off as to what they are doing will be Visa Bulletin cutoff date movement in April. If there is significant movement (as there was last year) then it is likely that the USCIS is again lagging. If there is little or no movement, we will have to wait until July to see what happens then.

The Department of State’s Visa Office has exclusive jurisdiction over the monthly allocation of immigrant visa numbers under the annual quota. In order to manage the quota, they publish the Monthly Visa Bulletin. This bulletin shows the availability of visas for each preference category and, if applicable, each foreign state affected by the single state limit.

If visas are immediately available to all applicants, the entry for the appropriate category will show as “C” or “current.” If not all qualified applicants can be accommodated immediately, the entry will show a date, known as a “cutoff” date. If no visas are available to any candidates in a specific category, the entry will show “U” or “unavailable.”

The Visa Office has explained this system as follows:

“If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example, if the Employment Third preference monthly target is 5,000 and there are only 3,000 applicants, the category is considered “Current”.

Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the Employment Third preference monthly target is 5,000 and there are 15,000 applicants, a cut-off date would be established so that only 5,000 numbers would be used, and the cut-off date would be the priority date of the 5,001st applicant.”

The waiting list for immigrant visas is thus ordered chronologically by applicants’ priority dates. (A priority date the earlier of the date the applicant’s labor certification was accepted for processing or the date the applicant’s labor certification exempt I-140 petition was accepted by the USCIS.) This list is dynamic in that when long pending I-140 petitions are approved, the beneficiaries are slotted into the list as of their older priority dates. This moves them into place ahead of those with more recently filed and approved petitions. Similarly, when someone with multiple petition approvals immigrates, the unused petitions are removed from the waiting list.

The Visa Office receives formal reports from all overseas consular posts at the end of each calendar month. This report summarizes the number of immigrant visa applicants who are documentarily qualified. “Documentarily qualified” immigrant visa applicants are those who have submitted all required documents and are only awaiting their final interviews. The USCIS also provides the Visa Office with requests for immigrant visa numbers. Generally, around the start of the second full week of the month, the Visa Office calculates the availability of visas and issues the cutoff dates for the following month.

In making their calculations, the Visa Office must look at the available supply of by preference category and chargeability area to determine how many are available for each. Next, they determine the demand for visas at that time. This is determined by the reports from overseas consular offices as well as the requests for visas from the USCIS.

Some months, the demand for visas is lower than the available supply. In these cases, the applicable categories are shown as current. In many cases, however, the demand greater than the supply and the establishment of a cutoff date is necessary. In these instances, the cutoff date may move forward from the previous month if the demand is less than the previous month.

The cutoff date can also retrogress, or move backward. This happens when demand increases beyond that of previous months, or when supply diminishes. Imagine a situation where, suddenly, due to the USCIS adjudicating 10,000 I-140 petitions in a single month, people with older priority dates enter the line. This is yet another situation that could cause cutoff date retrogression.

One of the big differences between consular processing and adjustment of status lies in how visa numbers are reserved for each. Consular officers report the number and type of qualified applicants before the end of each month. Let’s use January as an example. In this case, in early February, the Visa Office then does three things. First, they calculate the numbers of applicants who may receive visas for the following month (March). Second, they issue the March Visa Bulletin, showing the cutoff dates available for that month. Third, and finally, they reserve visa numbers for all of the consular posts around the world that reported cases in January. They notify those posts of the reserved visas and the posts then notify applicants that they will be interviewed in March. Each applicant has a visa number reserved for issuance in March.

With adjustment of status, things are different. When a USCIS adjudicator approves an adjustment application, he or she must contact the Visa Office and request a visa number. If numbers are available, a number is issued and the case is closed. That number is then counted against the quota. If no number is presently available, the case must remain open until a number becomes available. In such cases, the USCIS usually sends the file to USCIS archives, to be called up later after the applicant’s priority date becomes current. This process is not automatic, however, and if the USCIS fails to recall the case, it remains pending.