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Visa Bulletin And "Preference Categories"

The U.S. immigration system imposes a numerical limit on the number of green cards (immigrant visas) that are issued annually. With the exception of immediate relatives (spouses, children and parents of U.S. citizens), an immigrant visa number must be available in order for a foreign national to obtain a green card. Because the demand for green cards exceeds the supply, many foreign nationals have to wait in line until an immigrant visa is available. The following factors determine how long a foreign national must wait in line to get a green card: (1) the visa availability for the foreign national’s preference category; (2) the country to which the foreign national’s visa will be charged, which is usually the country of birth; and, (3) the foreign national’s priority date.

There are three categories of immigrant visas: family-based visas; employment-based visas; and, diversity visas. Each year, at least 226,000 family-based visas are available for persons who are not immediate relatives (spouses, children and parents of U.S. citizens). The formula for calculating the actual number of family-based visas in a given year is as follows: 480,000 less immediate relatives plus any unused employment-based visas. There are at least 140,000 employment-based visas available each year. Left over family-based visas are made available to the employment-based visa categories. A minimum of 50,000 diversity visas are available each year.

Family-based and employment-based visas are divided into preference categories. Family-based based preference categories are based on the underlying family relationship between the foreign national and the sponsor and whether the sponsor is a U.S. citizen or lawful permanent resident. Visas are allotted to family-based preference categories as follows:

  • 1st Preference (FB-1): Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
  • 2nd Preference (FB-2): Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
    • FB-2A: Spouses and Children: 77% of the overall second preference limitation of which 75% are exempt from the per-country limit;
    • FB-2B: Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
  • 3rd Preference (FB-3): Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.
  • 4th Preference (FB-4): Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

Employment-based preference categories are based on the type of immigrant petition that was filed by the foreign national’s sponsoring employer. Visas are allotted to employment-based preference categories as follows:

  • 1st Preference (EB-1): Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
  • 2nd Preference (EB-2): Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
  • 3rd Preference (EB-3): Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.
  • 4th Preference (EB-4): Certain Special Immigrants: 7.1% of the worldwide level.
  • 5th Preference (EB-5): Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

In addition to the annual limits on immigrant visas, the law prescribes a per-country limit for preference immigrants. The total number of immigrant visas issued to foreign nationals from one country may not exceed 7% (or 25,620) of the total annual family-based and employment-based preference limits.

The demand for visas from China, India, Mexico, and the Philippines has been historically high. As a result, foreign nationals from these countries often have to wait longer to obtain a green card than foreign nationals from other countries. Therefore, the determination as to which country a foreign national is charged to may become very important. As a general rule, a foreign national is charged to his country of birth – the foreign national’s country of citizenship is not controlling. There are four exceptions to this rule, but the following two are most commonly applied: (1) a child may be charged to the country of either parent (when following or accompanying to join a parent); (2) a spouse may be charged to the country of the accompanying spouse.

A foreign national’s place in line is determined by his or her “priority date.” For family-based immigration, the priority date is the date the immigrant relative petition (I-130) was filed. For employment-based immigration, the priority date is either: (1) the date the labor certification application was filed (for EB-2 an EB-3 categories requiring labor certification); or, (2) the date the immigrant petition was filed (for any preference category not requiring labor certification).

The U.S. Department of State announces the number of visas that are available for each immigrant visa category through a monthly report, which is called the “Visa Bulletin.” The Visa Bulletin includes separate charts, which indicate the visa availability for family-based, employment-based and diversity visa categories. Here is an example of a chart which was published in the February 2010 Visa Bulletin:

Employment-Based All Charge-ability Areas Except Those Listed China – Mainland born India Mexico Phillipines
1st C C C C C
2nd C 22MAY05 22JAN05 C C
3rd 22SEP02 22SEP02 22JUN01 01JUL02 22SEP02
Other Workers 01JUN01 01JUN01 01JUN01 01JUN01 01JUN01
4th C C C C C
Certain Religious Worker C C C C C
5th C C C C C
Targeted Employment Areas/Regional Centers C C C C C
5th Pilot Programs C C C C C

If the letter “C” is designated, this means that an immigrant visa for the category is current (immediately available) for all priority dates. If a date is designated instead of the letter “C”, a visa is available for foreign nationals with priority dates of that date or earlier. In order for a foreign national to apply for a green card, his or her priority date must be current. Moreover, the foreign national’s priority date must also be current at the time USCIS adjudicates his or her green card application. Priority dates may move back and forth – the fact that a foreign national’s priority date has become current does not mean it will remain current. While a foreign national may file a green card application upon his or her priority date becoming current, retrogression may result in years of waiting to get a green card.