The U.S. Department of State’s (DOS) Visa Bulletin for July 2010 makes clear that employment-based immigrant visa applicants will have to wait longer and longer. Across all categories with backlogs, there’s been very little movement over the last several months and no movement for unskilled “other workers.” Mexicans, for example, face an especially bleak outlook: visas for the entire employment-based third preference – the classification for professionals, skilled and unskilled workers – have been unavailable since May and will remain so until the next fiscal year, which begins October 1, 2010. When visas do become available, the wait is expected to be at least eight years. DOS also cautions that a cut-off date for religious worker immigrant visas may appear in September.
On the family side, immigrant visa backlogs have eased up, with backlogs in most categories eliminated by about six months. This improvement reflects lower demand. Nevertheless, significant waits remain for most family members. For example, unmarried sons and daughters (children over 21) of U.S. citizens must wait a little more than five years (Mexicans and Filipinos wait more than 15 years), and brothers and sisters of U.S. citizens wait nine years (Mexicans and Filipinos wait 15 or more years).
What does this all mean and how does the system operate? For those who are unfamiliar with the Visa Bulletin and what it actually means, a brief summary is provided below:
The immigration law sets out limitations on the total worldwide number of immigrant visas that can be issued by category per fiscal year. Approximately 140,000 immigrant visas are allocated for employment and 480,000 for family-based petitions. The law also establishes an annual per-country limitation of 7%, which visa issuances from any single country may not exceed. The country limitation serves to avoid visa monopolization by applicants from only a few countries. However, the limitation is not a quota to which any particular country is entitled. Thus, visa applicants compete for visas on a worldwide basis and within their country.
The State Department is responsible for administering these annual numerical limitations. At the beginning of each month, the DOS Visa Office (VO) receives a report from each consular post listing totals of documentarily qualified immigrant visa applicants in categories subject to numerical limitation. Applicants entitled to immigrant status become documentarily qualified at their own initiative by filing and obtaining, for example, an approved I-140 or I-130 immigrant visa petition. Cases are grouped by foreign state “chargeability,” “preference category,” and “priority date.” “Chargeability” is generally determined by the applicant’s birth country, “preference category” is the classification under which the individual is eligible, and “priority date” is the date on which the petition to accord the applicant immigrant status was filed.
The VO subdivides the annual preference and foreign state limitations specified by law into monthly allotments. The totals of qualified applicants that have been reported to VO are compared each month with the numbers available for the next regular allotment. Next, the VO considers a number of factors to determine how many numbers are available. These include past use, estimates of future use and return rates, and estimates from USCIS. Once this calculation is done, cut-off dates are established and visas are allocated in order of an applicant’s priority date. Cut-off dates and visa availability then are published in the monthly DOS Visa Bulletin.
If there are sufficient numbers in a particular category to satisfy demand, the category is considered “current” and reported as such in the Visa Bulletin. This means there is no backlog or wait. When, however, the total of qualified applicants in a category exceeds the supply of visa numbers available 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 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 visas, the VO establishes a cut-off date so that only the first 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant. Only persons with a priority date earlier than a cut-off date would be entitled to apply for a visa.
When visa demand from a particular country exceeds the amount of visa numbers available under the annual numerical limitation, that country is considered to be oversubscribed. Oversubscription generally requires the establishment of a cut-off date in a particular visa category that is earlier than on a worldwide basis. This results in a separate listing of that country on the DOS Visa Bulletin.
Not all numbers allocated are actually used for visa issuance; some are returned to VO and are reincorporated into the pool of numbers available for later allocation during the fiscal year. The rate of return of unused numbers often fluctuates from month to month; demand also fluctuates. These fluctuations cause cut-off dates to slow, stop, or even retrogress. Retrogression is common near the end of the fiscal year as visa issuance approaches the annual limitations.