How to Read the State Department Visa Bulletin By: Gary Chodorow Revised: November 10, 2012

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1 Majestic Towers, Bldg.1, Suite 11D No. 20, Gongti Dong Road Beijing, China T: or 美 国 康 永 华 律 师 事 务 所 中 国 北 京 市 朝 阳 区 工 体 东 路 20 号 百 富 国 际 大 厦 1 号 楼 11 层 D 室 邮 政 编 码 : How to Read the State Department Visa Bulletin By: Gary Chodorow Revised: November 10, Introduction Under U.S. immigration law, there is an annual quota for each category of applicants for lawful permanent resident (LPR) status. 1 Once the annual quota has been filled, the category is called oversubscribed and applicants must wait. They become eligible for LPR status in the order of their priority date. To be more precise, an applicant s priority date is locked when U.S. Citizenship and Immigration Services (USCIS) approves a Form I-130 (Petition for Alien Relative), Form I-140 (Immigrant Petition for Alien Worker), or Form I-526 (Immigrant Petition for Alien Entrepreneur). The, the applicant must wait until an immigrant visa number is immediately available for his or her priority date. Only if an immigrant visa number is immediately available can a person file a person complete the LPR application process by filing a Form I-485, Application for Adjustment of Status, or be granted an immigrant visa. The Visa Bulletin is a monthly publication of the U.S. State Department showing the availability of immigrant visa numbers for each category. 2 A sample in included below in Appendix A. 2. The Basics To understand whether an immigrant visa number is immediately available for you under the current month s Visa Bulletin, you first need to know three things: your preference category, your priority date, and your chargeability area. What Is My Preference Category? The Form I-797 approval notice issued by USCIS for your I-130, I-140, or I-526 should list your preference category and the corresponding section of law: 1 There are no quotas for the immediate relatives (spouse, parents, and unmarried children under age 21) of U.S. citizens. 2 It is available online at Beijing 北 京 Los Angeles 洛 杉 矶 Guangzhou 广 州

2 Page 2 Sample I-797 Approval Notice The preference categories for employment-based immigrants include: 1st: Aliens with extraordinary ability, outstanding professors and researchers, and multinational executives and managers. Section 203(b)(1). 2nd: Aliens who are members of the professions holding advanced degrees and aliens of exceptional ability in the sciences, arts, or business. Section 203(b)(2). 3rd: Professionals with bachelor's degrees and skilled workers (with two or more years of work experience). Section 203(b)(3)(A)(i) or (ii). o Other workers. Section 203(b)(3)(A)(iii) 4th: Special immigrants. Section 203(b)(4). o Certain religious workers 5th: Employment creation. Section 203(b)(5): o Targeted employment areas / regional centers / and pilot programs. Section 203(b)(5)(C)(iii). The preference categories for family-sponsored immigrants include: F1: Unmarried adult sons and daughters of U.S. citizens. Section 203(a)(1). F2A: Spouses and unmarried children under 21 years old of lawful permanent residents. Section 203(a)(2)(A). F2B: Unmarried sons and daughters over 21 years old of lawful permanent residents. Section 203(a)(2)(B). F3: Married sons and daughters of U.S. citizens. Section 203(a)(3). F4: Brothers and sisters of adult U.S. citizens. Section 203(a)(4). What Is My Priority Date? Your priority date should also be shown on the Form I-797 approval notice for your immigrant petition issued by USCIS. It is the date that your immigrant petition was received by USCIS, or the date your labor certification application was received by the U.S. Department of Labor.

3 Page 3 What Is My Chargeability Area? Your chargeability area is generally your country of birth. However, there are four exceptions to this rule: (1) If you are accompanying or following to join your spouse, you may be charged to your spouse s country. (2) A child may be charged to the country of either parent whom they are accompanying or following to join. (3) If you were born in a country where neither parent was born or resided, you may be charged to the country of either parent. (4) If you were previously a U.S. citizen but lost your citizenship, you are charged to the country of your current citizenship or, if you have no citizenship, to your country of last residence. Your chargeability area is important because there is a per-country limit. Generally speaking, no more than 7% of the total number of family-sponsored and employment-based visas may be issued to nationals of any chargeability area How to Read the Visa Bulletin 3 INA 202(a)(2). This initial limit can be increased in three ways for employment-based categories. First, unused family-sponsored numbers can fall down to increase employment-based limits. INA 202(e). Second, unused numbers can fall down from E1 to E2 to E3. INA 202(a)(2). Third, if the worldwide demand for a particular employment-based category is less than the worldwide limit, then numbers can fall across to an oversubscribed country. INA 202(a)(5)(A). For example, there if there is a 40,000 worldwide annual limit (10,000 per quarter) for the EB2 category, but demand is below that limit, then after the initial allocation is made quarterly, the unused EB2 numbers fall across to oversubscribed countries. See Pl. Motion for Preliminary Injunction, Li v. United States (W.D. Wash. 2010), Case 2:10- cv raj.

4 Page 4 Step 1: Locate the current month s Visa Bulletin at Step 2: On the family-sponsored or employment-based table, find the row for your preference category Step 3: Find the column for your chargeability area. Step 4: Compare your priority date to cut-off date shown. If your priority date is earlier than the cut-off date, then an immigrant visa is immediately available. The following entries may appear instead of a cut-off date: U (Unavailable): This means that no visas are available for this preference category and chargeability area this month. C (Current): This means immigrant visas immediately available for all priority dates. 4. Can I Use the Priority Date from a Prior Immigrant Petition Filed for Me? These rules are complex. Discuss this topic with your lawyer. 5. What are the Annual Quotas? Immigrant visa issuances during fiscal year 2013 are limited by Congress to no more than 226,000 in the family-sponsored preferences and approximately 144,000 in the employmentbased preferences. For further details, see Appendix B. 6. How Can I Predict When an Immigrant Visa Number Will Be Available to Me? It is difficult to predict when an immigrant visa number will become available. Advancement of cut-off dates is sometimes erratic, and the cut-off dates sometimes even retrogress. How the cutoff dates move depends on several factors, including how many people have approved immigrant petitions; how many of those apply for and are granted adjustment of status or an immigrant visa; and how fast the U.S. Department of State, U.S. Department of Labor, and USCIS adjudicate immigration cases, using up the quota. 4 Sometimes it is helpful to look at historical trends of how priority dates have advanced for each preference category and chargeability area. The State Department has posted comprehensive lists of cut-off dates with historical data at Of course, past performance is no guarantee of future trends. 4 For the details of how the State Department administers the numerical control system, see The Operation of the Immigrant Numerical Control System,

5 Page 5 7. How Could Retrogression Impact My Application? Generally, the availability dates on the Visa Bulletin move forward, but they do not move forward at a consistent pace, and they sometimes retrogress (move backwards). For an applicant for adjustment of status, retrogression after filing could also delay approval. The application would remain pending, and employment authorization and travel on advance parole would remain possible until an immigrant visa number becomes available. 5 While the case is awaiting availability of the retrogressed visa number, the alien is eligible for issuance of advance parole for the purposes of travel outside the U.S. and return, at the discretion of the director having jurisdiction over the matter. 5 AFM ch. 20.1(e). However, if the applicant is not eligible for adjustment due to an issue not related to visa availability (e.g., a criminal conviction), then USCIS may should adjudicate the application rather than wait for the priority date to be current. Id.

6 Page 6 Appendix A: Sample Visa Bulletin

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13 Page 13 Appendix B: Annual Numerical Limits Fiscal Year 2013 Source: