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 1^st through September 30^th). 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 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 CIS inefficiency.

This article was researched and written by Jim Gotcher and Ron Gotcher.