Visa Bulletin Update: EB Immigrant Visa Availability

Update: current employment-based immigrant visa availability and prediction for FY-2013 (10/01/2012 – 09/30/2013)

Recently we received many inquiries on the availability of employment-based immigrant visa numbers and in response, we felt it would be helpful to provide some additional information on how the visa numbers are allocated as well as an update on the projected visa number availability for the 2012-2103 fiscal year.

According to the just released September Visa Bulletin, compared to August, employment based third preference (“EB-3”) cut-off dates for India will move ahead to October 8, 2002, December 15, 2005 for mainland China, August 1, 2006 for the Philippines, and October 1, 2006 for all other countries. Employment based second preference (“EB-2”) cut-off dates will continue to be unavailable for mainland China and India and remain at January 1, 2009 for all other countries.

The DOS expects that when the fiscal year 2013 starts in October 2012, EB-2 visa numbers will become available for mainland China and India but will have cut-off dates of August or September 2007, which may not move forward during the first two quarters of fiscal year 2013, and EB-2 visa numbers will become current for all other countries.

By way of background, the Immigration and Nationality Act (INA) determines the number of employment based immigrant visas that may be issued to individuals seeking permanent resident status (a green card) each year.

Immigrant visa numbers for individuals in a “preference category” are limited, so are not always available. The U.S. Department of State (“DOS”) is the agency that distributes visa numbers. Employment based preference visas are limited to approximately 140,000 per year. In addition, there are limits to the percentage of visas that can be allotted to each country. Each month the DOS publishes a monthly report (“Visa Bulletin”) listing the visa number availability (“cut-off dates”) for different categories and countries for each preference category.

When the demand is higher than the supply of visas for a given year for some categories, a visa queue (waiting list) forms. To distribute the visas among all preference categories, the DOS issues visas by providing visa numbers according to the preference category and one’s priority date. The priority date (explained below) is used to determine an individual’s place in line in the visa queue. When the priority date becomes current, the individual will be eligible to apply for a green card through application for adjustment of status (form I-485) in the U.S. or immigrant visa application at a U.S. consular post abroad.

If the demand is more than supply for a particular visa category or foreign state, and cannot be satisfied within the allowable limits, the DOS considers the preference visa category or foreign state “oversubscribed” and must impose a cut-off date. In this instance, only those applicants who have a priority date earlier than the date listed in the Visa Bulletin may file form I-485, application for permanent resident status, in the U.S. or apply for an immigrant visa at a U.S. consular post abroad. However, sometimes the visa number availability cut-off dates roll back from month to month if the demand for the visa numbers exceeds the available numbers allotted for that country and preference category.

Priority Dates for Employment Based Preference Cases

The priority date for an employment based green card application is either:

  • The date the I-140 petition was properly filed with USCIS, or
  • The date the labor certification (PERM) application was filed with the Department of Labor (when a labor certification is required).

An individual’s priority date can be found on Form I-797, Notice of Action, for the I-140 petition filed on behalf of the individual. The length of time the individual must wait in line before applying for a green card depends on:

  • The demand for and supply of immigrant visa numbers
  • The per country visa limitations
  • The number of visas allocated for the individual’s particular preference category