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B. ALLOCATION OF IMMIGRANT VISA NUMBERS
1. OPERATION OF THE IMMIGRANT NUMERICAL CONTROL SYSTEM
(Source: Visa Office, Department of State, as of January 1, 1992) The Department of State is responsible for administering the provisions of the Immigration and Nationality Act (INA) relating to the numerical limitations on immigrant visa issuances and adjustments of status. Following the description of the administrative mechanics, there is a brief glossary of terms used therein. HOW THE SYSTEM OPERATES:
The INA sets forth both overall annual and foreign state limitations, which vo administers on the basis of twelve monthly allocations. In order to determine the distribution of the visa numbers, VO requires a report at the beginning of each month from each immigrant visa issuing post which lists totals of documentarily qualified applicants subject to the numerical limitations. These data are grouped by foreign state chargeability/preference/priority date. No names are reported. (The Immigration Service requests visa numbers on a case-by-case basis as needed.)
VO collates these data by priority date within the chargeability and preference subdivisions during the first week of the month. This collated list of documentarily qualified demand is then compared with the numbers available for that month and numbers are allocated to posts for reported applicants in the order of their priority dates, the oldest dates first.
If there are sufficient numbers in a particular category for all documentarily qualified applicants, the category is considered "current". Whenever the total demand in a category exceeds the supply of visa numbers available for allotment during that month, the category is considered “oversubscribed” and a cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated within the limit. The allocations include visa numbers only for applicants with priority dates earlier than the cut-off date. The cut-off dates are ordinarily the 1st, 8th, 15th, and 22nd of a month. (Priority dates are usually grouped by weeks, the first through the seventh under 1st, the eighth through the fourteenth under 8th, etc.) In the case of an oversubscribed foreign state or dependent area, however, the reported demand is not grouped but reported by actual priority date, and the cut-off date may not meet that pattern.
By the second week of each month, VO has determined allocations and cut-off dates (if any), and telegraphically transmitted both to all posts. The cut-off dates are simultaneously made public; VO has a recorded telephone message at (202) 663–1541 which is updated whenever there is a change in cut-off dates. This information is also published in VO's monthly Visa Bulletin. (Requests for inclusion on the Visa Bulletin mailing list may be addressed to Visa Bulletin, Visa Office, Department of State, Washington, DC 20522-0113.) DEFINITION OF SOME TERMS:
Allotment: The allocation of one or more immigrant visa numbers to a consular office or to INS for use in connection with immigrant visa issuance(s) or adjustment(s) of status. If not used, such numbers must be returned to the Visa Office (VO) for reincorporation into the pool of numbers available for later allocations during the fiscal year.
Documentarily Qualified: The applicant has notified the consular office that he or she has obtained all of the documents specified by the consular office as sufficient to apply formally for an immigrant visa (see § 222(b)) and the consular office has completed all necessary preliminary processing.
Entitled to Immigrant Status: An alien is entitled to an immigrant status if a petition according such status has been approved or, if a petition is not required, the alien has established to the satisfaction of a consular or immigration officer that he or she meets the requirements for status as a special immigrant defined in § 101(a)(27)(A) or (B), is a displaced Tibetan or Amerasian.
Foreign State Chargeability: As a general rule, an alien is chargeable to the foreign state or dependent area of birth. Exceptions are provided for: a child (under 21 years of age and unmarried) and/or spouse accompanying or following to join a principal alien if necessary to prevent the separation of the family unit; a person born in a foreign state in which neither parent was born nor permanently resident at the time of the birth; and, an alien born in the United States but not a citizen thereof. (Sec. 202(b).) The current nationality of the alien is not a factor in determining foreign state chargeability except in the case of a person born in the United States.
BACKGROUND INFORMATION AND CLARIFICATION OF SOME FREQUENTLY MISUNDERSTOOD POINTS:
Applicants entitled to immigrant status are instructed to obtain requisite supporting documentation when it appears that a visa number will be available within the next few months. The movement from that category to documentarily qualified", however, depends entirely on their own initiative and convenience thereafter. Therefore, not all applicants with priority dates within the cut-off date have been reported for allocation of a visa number nor their cases processed to final action. As noted, visa allotments are made solely on the basis of applicants who have become documentarily qualified. Such reported demand can (and does) fluctuate from one month to another, with an inevitable effect on cut-off dates. If an applicant is reported as documentarily qualified but a cut-off date precludes allocation of a visa number, the priority date of that applicant is recorded in VO and an allocation made as soon as the movement of the cut-off date makes it possible. The post does not need to re-report such demand in following months.
Visa numbers are always allocated for all documentarily qualified applicants whose priority dates are within the relevant cut-off date provided the case has been reported in time to be included in VO's compilation of reported demand.
Not all numbers so allocated are actually used at the time, because either the applicant fails to keep the appointment or is found ineligible for a visa during the formal application. Unused numbers, as noted above, must be returned to Võ for later reallocation. The rate of return fluctuates, just as demand does. Fewer returns means fewer numbers available for reallocation. Coupled with demand, such fluctuations may also affect cut-off dates, causing them to remain static, slow, speed up, or even retrogress. Retrogression is particularly possible near the end of the fiscal year as visa number usage near the annual limitations.
Allocations to consular posts outside the regular monthly cycle are possible in emergency or exceptional circumstances but only at the request of the processing consular office. If, however, retrogression of a cut-off date has been announced, requests for such special allocations can be honored only if the applicant's priority date is within the retrogressed date.
Generally speaking, the law is designed to achieve two sometimes-conflicting goals: to accommodate applicants in chronological order and, at the same time, preclude preemption of all visa numbers by natives of one or a few countries with unusually high emigration levels. This has been controlled since 1965 by a “per-country” limit of 20,000 numerically-limited visas and adjustments. Inasmuch as that led to significant disparities in cut-off dates, the Immigration Act of 1990 (§ 102 of P.L. 101-649) modified the system in two ways; it increased the ceiling and, more importantly, it made 75% of the family-sponsored 2A preference category exempt from the per-country ceiling, which will gradually eliminate such disparities for that classification.
It must be noted that the per-country limit (now a minimum of 25,620) is not a “quota" set aside for any given country. Clearly, each country could not receive 25,620 visas within the overall limit. It is not an entitlement but a barrier against monopolization.
The law also requires (8 202(e) that visa allocations to oversubscribed foreign states be pro-rated among the classifications, in order to prevent preemption of the per-country limit by applicants in the higher classes. (A foreign state (or dependent area) is considered "oversubscribed" when known demand exceeds the per-country limit.) If demand is insufficient to use the pro-rated share of the numbers, however, the unused numbers fall to other classes, causing a disparity from rigid pro-rating during any given allocation cycle.
The Visa Bulletin sometimes contains projections of future availability of visa numbers for the various classifications and oversubscribed foreign states. Although these are based on the best available data, they are not guarantees as to what will happen. Many factors affect the rate at which demand ebbs and flows, and actual movement of cut-off dates is contingent solely on each month's reports of documentarily qualified applicants.
COMPARISON OF THE FORMER SERIES OF IMMIGRANT VISA CATEGORIES AND THE REVISIONS MADE BY THE IMMIGRATION
ACT OF 1990
FORMER CATEGORIES IMMEDIATE RELATIVES
(spouses and children of U.S. citizens, and parents of
citizens at least 21 years old) Not subject to numerical limit..
THE IMMIGRATION ACT OF 1990 IMMEDIATE RELATIVES
No change in former categories; a new provision makes
possible in certain circumstances immediate relative status for the widow/widower of a U.S. citizen, if such widow/widower files a petition within two years of the citizen's death.
FAMILY SPONSORED PREFERENCES
former annual numerical limits: 216,000
FAMILY SPONSORED PREFERENCES
Annual numerical limit is determined by subtracting the
previous year's immediate relative total from a specified "Worldwide Level of Family Sponsored Immigrants” 226,000 minimum
1. Unmarried Sons/Daughters of Citizens..
former preference limit: 54,000
ence numbers added, issuances in recent years have been about 110,000)
1. Unmarried Sons/Daughters of Citizens.
No change in entitlement; 23,400
23% (26,266 minumum)
4. Married Sons/Daughters of Citizens.
former preference limit: 27,000
3. Married Sons/Daughters of Citizens.
No change in entitlement; 23,400 4. Brothers/Sisters of Citizens 21 Years of Age or Over.
No change in entitlement; 65,000
5. Brothers/Sisters of Citizens 21 Years of Age or Over.
former preference limit: 64,800
No equivalent category.
TRANSITION FOR SPOUSES/CHILDREN OF PERSONS LE
GALIZED UNDER THE VARIOUS LEGALIZATION PROVISIONS OF THE IMMIGRATION REFORM AND CONTROL ACT OF 1986.
For each of FYs 1992 through 1994, 55,000 additional
numbers are provided for this class.
Persons of EXTRAORDINARY Ability in the Sciences,
Arts, EDUCATION, BUSINESS or ATHLETICS,
AND CERTAIN MULTINATIONAL EXECUTIVES
unused fourth and fifth preference numbers
2. Members of the Professions HOLDING ADVANCED DE
GREES or Persons of Exceptional Ability in the Sciences,
former annual numerical limits: 54,000
annual numerical limit: 140,000
37-449 0 - 92 - 17
3. Members of the Professions and Persons of Exceptional Ability in the Sciences or Arts.
former preference limit: 27,000
1. PRIORITY WORKERS:
6. Skilled and Unskilled Workers in occupations for which
is in sho supply the U.S. former preference limit: 27,000
3. Skilled Workers, Professionals and Other Workers:
Skilled Workers in short supply (at least two years train
preference limit: 28.6% of the annual limit, plus any
unused above; not more than 10,000 of which to “Other Workers'
not formerly subject to numerical limitations.
4. CERTAIN Special Immigrants (NOT INCLUDING Return
ing Residents and Certain Former U.S. Citizens [Special
U.S. Government Abroad, Panama Canal Employees,
Also includes new Special Immigrant classes for: COMPARISON OF THE FORMER SERIES OF IMMIGRANT VISA CATEGORIES AND THE REVISIONS MADE BY THE IMMIGRATION
THE IMMIGRATION ACT OF 1990
FYs 1992 through 1994 only.
Special Immigrant preference limit: 7.1% of the annual limit, of which not more than 5,000 to
the new Religious Worker classes
TO SERVE IN THE U.S. ARMED FORCES FOR AT LEAST
(P.L. 102–110) establishes this new special immigrant
Marshall Islands, Micronesia, and Palau;
numerical limits for the year in which visas are issued,
(Investors in a new commercial enterprise which will
create full-time employment for not fewer than 10 per-
than 3,000 of which reserved for investors in a rural or high unemployment area
ACT OF 1990_Continued
Court in the U.S.
no equivalent category.
no equivalent preference.
5. EMPLOYMENT CREATION.