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Family & Employment Based Preference Categories and Priority Date Retrogression

Section 203 of the Immigration and Nationality Act (INA) sets limits on how many “green cards” (legal permanent residency cards or immigrant visas) may be issued during the U.S. Citizenship and Immigration Services’ (“USCIS”) fiscal year in all visa categories. The fiscal year runs from October 1 st through September so”. A certain number of both family and employment based immigrant visas are allotted based on the statutory numerical limitations. In the family based arena, nationals of each country may obtain immigrant visas based on preference categories . The first family sponsored preference category (Fl) allots immigrant visas for the unmarried sons and daughters of U.S. Citizens . The second preference category (F2A) includes the spouses and children, and unmarried sons and daughters of permanent residents (F2B). The third preference category (F3) includes the married sons and daughters of U.S. Citizens and the fourth preference category (F4) includes the brothers and sisters of adult U.S. Citizens.

Section 202 of the INA provides that no one country may have more than 7% of the total number of visas available annually for family sponsored and employment based immigrants. If these limits a r e exceeded in a particular category, for a particular country, a waiting list is created and applicants are placed on the list according to the date of the case filing. This date is called a “Priority Date,” and only applicants who have a priority date earlier than the cut-off date may be allotted a number. The Department of State (“DOS”) publishes the priority dates on a monthly basis in the “Visa Bulletin.” The dates listed in this article were current as of the time of submission. For an updated look at the current priority dates, the Visa Bulletin is accessible at www.travel.state.gov. From the homepage click on the button, “Visas,” in the middle of the page. On the next page, click on “Visa Bulletin” on the left hand side to access the current or archived Visa Bulletins.

Certain countries with many immigrants to the U.S. are oversubscribed due to the demand for the visas in the various family and employment based immigrant visa categories . In short, the demand for green cards outweighs the supply in some preference categories in both the family and employment based categories, especially for foreign nationals from the following countries : China (Mainland), India, Mexico and the Philippines . The worldwide limit for all family based preference categories is set annually at a minimum of 226,000 immigrant visas. To illustrate, below is a chart from the June 2011 Visa Bulletin for the Family Based Preference categories:

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In the employment-based area, nationals of each country may obtain immigrant visas in a preference category, such as EB-1, EB-2, and EB-3. EB-1 means the Employment-Based First Preference category and includes the following: (1) Persons with extraordinary ability i n the sciences, arts, education and athletics; (2) Outstanding professors and researchers; and (3) Multi-national executives and managers. EB-2 refers to the Employment-Based Second Preference category including the following: (1) Members of the professions holding advanced degrees (Master’s or Ph.D.); and (2) Persons of exceptional ability in the sciences, art or business. The Employment-Based Third Preference category (EB-3) includes Professionals and Skilled Workers (Bachelor’s degree or two years of t raining) . The position must require a minimum of a Bachelor’s degree or two years of training.

Similar to family based immigration, the waiting period for an immigrant visa i n the employment context begins with the “Priority Date. ” The priority date is either the date a Labor Cer t if i cation is filed by an employer with the Department of Labor (“DOL”), or if t h e foreign national is exempt from the Labor Certification process , it is the date of filing the 1-140 Immigrant Petition with USCIS . The worldwide limit for all employment based preference categories i s at least 140 , 000 immigrant visas issued on an annual basis.

Since 2005, there has been a significant increase in the backlog of employment based green cards as t he demand began to exceed the annual supply of immigrant visas due to backlog reduction programs at both USCIS and the DOL. Reducing backlogs of Labor Certification applications by the DOL and 1 – 1 40 Immigrant Petitions by USCIS created a significantly higher de m and for im migrant visas than previously experienced. Consequently, the DOS was forced to establish priority date cut offs in many employment based immigrant visa categories. The current backlog is expected to continue for the short -term in the employment based preference categories . Legislative changes addressing an i nc r ease in the number of employment based green cards available each year have so far been unsuccessful.

In order to apply for an Adjustment of Status application, foreign nationals must wait for their priority date to become current . If there is a ” C’ in an employment-based category in the Visa Bulletin , t he n there is no quota back log and the foreign national may proceed with an Adjustment of Status application or immigrant visa application at a U.S . Embassy or Consulate ab road , which is the last step i n the green card or legal permanent residency process.

To illustrate, below is a chart from the June 2011 Visa Bulletin f or the Employment Based Preference categories:

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A third avenue of immigrant visas available to foreign nationals is through the Diversity Visa (DV) immigrant category or “lottery.” Section 203(c) of the INA provides a maximum of up to 55,000 immigrant visas per fiscal year to allow immigrant opportunities to individuals from countries other than the most popular current country sources for u.s. immigration (e.g. China, India, Mexico and the Philippines). The only requirement for applying for a DV green card is a high school education or its equivalent. Countries permitted to participate in the DV lottery change slightly each fiscal year. For a complete list of eligible countries, please check with the DOS at www.travel.state.gov.

The long waits to obtain permanent residency in both the family and employment based categories can be difficult to navigate and frustrating to many foreign nationals, their family members and u.s. employers. A third avenue for immigration is available for some qualified immigrants through the Diversity Visa Lottery. If you need assistance deciphering the immigrant visa preference categories as listed in the Visa Bulletin, please contact Jacqueline Lentini, Law Offices of Jacqueline Lentini, 1770 S. Randall Road, Ste. A-221, Geneva IL 60134, jacki@lentinivisas.com, or 630-262-1435.