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NPZ Immigration Law Blog

Wednesday, November 13, 2013

U.S. State Department Provides Clarification on Calculation of Immigrant Visa Numerical Limits, Eligibility


The Department of State (DOS) recently released additional, more detailed information about how it calculates immigrant visa availability cut-off dates.

DOS explained that each month, its Visa Office subdivides the annual preference and foreign state limitations into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and U.S. Citizenship and Immigration Services (USCIS) offices, grouped by foreign state "chargeability" (the country where an applicant was born is his/her country of "chargeability"), preference category (which employment-based category the immigrant visa petition is filed in), and priority date (when the legal permanent residence application was first filed - either with the USCIS or with the U.S. Department of Labor (DOL), depending on the type of case).

If there are sufficient numbers in a particular immigrant visa category, the immigrant visa category for that country is considered "Current." For example, if the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category will be 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 monthly target is 3,000 and there is demand for 8,000 applicants, it would be necessary to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.

The DOS noted that the employment-based immigrant visa limits for the 2013 government fiscal year were reached before the end of September (the new fiscal year begins on October 1). Although pending employment-based cases continued to be processed, they could not be approved and were placed in a "Pending Demand" status. Any cases that did not receive visa numbers in the last fiscal year were allocated under the new quota for the 2014 fiscal year which began on October 1, 2013.

The DOS has stated that the number of adjustment of status (AOS) applications already filed in the employment third preference (on which U.S. Citizenship and Immigration Services has not yet finalized action) for countries other than India and the Philippines exceed the numbers currently available. The AOS filings are the result of the cut-off dates for those countries having been advanced dramatically since April 2013 to ensure that all available employment-based numbers were used in the 2013 fiscal year. The sustained demand is being considered in the determining the monthly cut-off dates to prevent unnecessary fluctuation.

It is important to note that the cut-off dates for some categories/countries has limited the number of applicants who have been able to file for adjustment of status with USCIS, and such applicants would not be included in the totals. In addition, new applicants are constantly becoming eligible for processing in categories for which cut-off dates do not apply, or for a category other than that in which they initially filed for status. Therefore, DOS said that the totals in the Visa Bulletin charts should not be read as reflective of the entire universe of applicants. These totals only represent the amount of demand taken into consideration during the determination of new dates.

The Department of State's Visa Office wrote in the November 2013 Visa Bulletin:

It is important to remember that the establishment of a monthly cut-off or "Current" status for a numerically controlled category (preference or Diversity [Visa]) applies to those applicants who were reported prior to the allocation of visa numbers for that month. For example, all qualified applicants who were reported to the Visa Office in time to be included in the calculation of the September cut-offs, who had a priority date or rank-order number before the relevant September cut-off, would have been allotted visa numbers for September. There would be no expectation, however, that sufficient numbers would be available for the processing of cases which subsequently became eligible for final action during that month. Additional numbers may be allocated outside the regular monthly cycle, but only to the extent that such numbers remain available under the applicable annual limit. The availability of additional numbers is subject to change at any time and should never be taken for granted. This is especially true late in the fiscal year when numerical allocations are often close to or at the annual limits.

When applicants fail to appear or overcome a refusal (even for reasons beyond their control) during the original month of scheduled interview, they risk not having their case processed later in the fiscal year. This is because the establishment of a monthly cut-off or "Current" status for a numerically controlled category (preference or Diversity Visa) applies to those applicants who were reported before the allocation of visa numbers for that month.

Meaningful movement on employment based cases for applicants that, in certain cases have been waiting more than 10 years, continues to be slow. We believe that Comprehensive Immigration Reform is needed to address these issues. Until we have more parity in visa number availability or a more common sense approach to the allocation of numbers (for example, at present, all dependents require a visa number from the allocation instead of just the principal applicant), there will continue to be substantial delays in certain categories for individuals from countries like India, China, Mexico and the Philippines.

For more information, please feel free to contact the Immigration and Nationality Lawyers at the NPZ Law Group at 201-670-0006 or by e-mailing us at info@visaserve.com.

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