ANNUAL NUMERICAL LIMITATION – IMMIGRATION ANNUAL QUOTA


ANNUAL NUMERICAL LIMITATION (QUOTA) GUIDE – Employment-based

This guide is intended to explain why certain employment-based immigrants may be told that they cannot be scheduled for an immigrant visa/consular interview, file I-485 adjustment of status applications or have their pending I-485 applications approved by USCIS due to reasons such as “the priority date not being current,” or that the “quota has retrogressed.”

While certain family-based categories are subject to the annual numerical limitation, this writing addresses only the employment-based categories.

Steps in Securing Permanent Residence – Employment-Based

The majority of cases require a “labor certification” which entails establishing to the U.S. Department of Labor that the employer/sponsor has tried to recruit U.S. workers and failed to locate such workers. This is generally the first step for most cases; the second step is the filing of the I-140 immigrant visa petition with USCIS (Immigration) and the third and last step is consular processing at a U.S. Consulate where the person will eventually be issued an immigrant visa (some persons, but not all, who are already in the USA are able to avoid appearing at the U.S. Consulate by filing an I-485 adjustment of Status Application with USCIS).

In some cases, the I-140 (step 2) and the I-485 (step 3) can be filed concurrently.

(As above-stated some cases do not require a labor certification and will have only two steps: 1) the I-140 petition and 2) consular processing (or adjustment of status).

Annual Worldwide Numerical Limitation

Most employment-based immigration to the United States is subject to an annual numerical limitation or maximum number per year (quota). The annual numerical limitation means that there is a limited number of aliens that can become lawful permanent residents in any given year.

The worldwide level for annual employment-based preference immigrants is at least 140,000.

Per Country Numerical Limitation

This annual numerical limitation is divided amongst all countries setting a maximum number of immigrants that can secure employment-based immigrant visas (or adjust status) in a given year.

The per-country limit for employment-based immigrants is set at 25,620. The dependent area limit is set at 7,320 (a dependent area means a country that is not an independent nation and is subject to yet another but is not part of that country; example, countries that are dependencies of the United Kingdom are Anguilla, Bermuda, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Guernsey, Jersey, Isle of Man, Montserrat, Pitcairn Islands, Saint Helena, South Georgia and the South Sandwich Islands, Turks and Caicos Islands.)

Preference Categories

The available annual immigrant visas are divided amongst a variety of employment based “preference” categories. There are several categories for employment-based preference categories:

The EB-1 or first preference category which includes Persons of Extraordinary Ability in the Sciences, Arts, Education, Business or Athletics; Outstanding Professors and Researchers; Multinational Executives and Managers – no “labor certification” is required for members of this category.

The EB-2 or second preference which is comprised of Members of the Professions Holding Advance Degrees or People With Exceptional Ability; – most persons in this category require a labor certification.

The EB-3 or third preference which is comprised of Skilled Workers (two years of experience required by the job offer, Professionals (bachelor’s degree required) – a labor certification is required in all cases.

The EW3 Other Workers (unskilled) – a labor certification is required.

The EB-4 Category of Special Immigrants Special Immigrants – Religious Workers – no labor certification is required.

The EB-5 Investor Employment Creation Visa – no labor certification is required.

Priority Date

The “priority date” is the date of filing the “labor certification” application with the Labor Department for all cases that require a labor certification or upon the filing of the I-140 immigrant visa petition for those cases that do not require a labor certification. Such priority date is used to determine the alien’s order and time of immigration as the law provides that those who begin their cases earlier should secure immigrant visas (or adjust status) before those who applied later.

Allocation of Worldwide Numerical Limitation to Each Category

EB-1Category: 28.6% of the worldwide employment-based preference level (plus any numbers not required for fourth and fifth preferences);

EB-2 Category: 28.6% of the worldwide employment-based preference level (plus any numbers not required by first preference);

EB-3 and EW3 Categories: 28.6% of the worldwide level (plus any numbers not required by first and second preferences) with no more than 10,000 allocated to the EW3 Other Workers Category;

EB-4 Category: 7.1% of the worldwide level;

EB-5 Category: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers.

Cut Off Dates – Visa Bulletin

If there are more applicants than there immigrant visas available, then such excess applicants are placed on a waiting list based on the applicants’ priority date

The Department of State, the agency entrusted with administering the annual numerical limitation publishes each month what is known as the Visa Bulletin wherein it notifies consuls, the USCIS and the general public as to whether any given “preference” category for any given country is “current” or whether the demand exceeds the annual limitation.

If there is demand for immigrant visas greater than the numerical limitation, the Department of State establishes a “cut off date” for each country and for each category. If an alien’s priority date is earlier than the cut off date, then the quota is open for such alien and if the priority date is later than the cut off date, then the quota is closed for such person and he/she cannot be scheduled for an immigrant visa interview at a U.S. Consulate or apply for adjustment of status in the USA.

In the case where a person has filed an I-485 adjustment of status application at a time that his/her priority date was “current” and such application has not been approved by USCIS at the time the quota retrogresses, the USCIS cannot approve the adjustment of status application until the priority date again becomes “current.”

The visa bulletin can be found at the Department of State web site at http://travel.state.gov

http://travel.state.gov/visa/frvi/bulletin/bulletin_1770.html

What to do if consular processing was/is being contemplated

If a labor certification has not yet been filed, it can be filed as the numerical limitation does no impede the processing of this step.

If a labor certification has been filed, the Labor Department will process it, as the quota does not affect this process.

If the labor certification has been approved, the I-140 immigrant visa petition can be filed, as the quota does not affect this process.

When the I-140 immigrant visa petition is approved, the USCIS will forward the same to the National Visa Center in New Hampshire where the petition will be retained until the quota is within a few months of opening.

What to do when adjustment of status was/is being contemplated

As above indicated if a labor certification has not yet been filed, it can be filed as the numerical limitation does no impede the processing of this step; if a labor certification has been filed, it will be processed by the Labor Department as the quota does not affect this process; if the labor certification has been approved, the I-140 can and should be filed by as the quota dos not affect the processing of this step.

When the priority date becomes current, an I-485 adjustment of status application can be filed even before the I-140 is approved (the I-485 is filed with a copy of the I-140 filing receipt). If the I-140 has been approved, then the I-485 application will be filed with a copy of the approval notice. It behooves the alien I-140 beneficiary to check the VISA BULLETIN each month to monitor the quota.

If the I-140 immigrant visa petition was filed concurrently with an I-485 adjustment of status, the I-140 will most likely b approved within the normal processing time for the I-140 and the I-485 will be held in abeyance until the priority date becomes current. In other words, the I-485 will not be approved together with the I-140 and may take, in some cases, several years.

Other Considerations

Of course, the delay in having a consular interview, filing an I-485 means that the alien beneficiary may have to file extension applications of their temporary worker nonimmigrant status (H-1B, L-1, etc). ANNUAL NUMERICAL LIMITATION (QUOTA) GUIDE – Employment-based

1/2005

This guide is intended to explain why certain employment-based immigrants may be told that they cannot be scheduled for an immigrant visa/consular interview, file I-485 adjustment of status applications or have their pending I-485 applications approved by USCIS due to reasons such as “the priority date not being current,” or that the “quota has retrogressed.”

While certain family-based categories are subject to the annual numerical limitation, this writing addresses only the employment-based categories.

Steps in Securing Permanent Residence – Employment-Based

The majority of cases require a “labor certification” which entails establishing to the U.S. Department of Labor that the employer/sponsor has tried to recruit U.S. workers and failed to locate such workers. This is generally the first step for most cases; the second step is the filing of the I-140 immigrant visa petition with USCIS (Immigration) and the third and last step is consular processing at a U.S. Consulate where the person will eventually be issued an immigrant visa (some persons, but not all, who are already in the USA are able to avoid appearing at the U.S. Consulate by filing an I-485 adjustment of Status Application with USCIS).

In some cases, the I-140 (step 2) and the I-485 (step 3) can be filed concurrently.

(As above-stated some cases do not require a labor certification and will have only two steps: 1) the I-140 petition and 2) consular processing (or adjustment of status).

Annual Worldwide Numerical Limitation

Most employment-based immigration to the United States is subject to an annual numerical limitation or maximum number per year (quota). The annual numerical limitation means that there is a limited number of aliens that can become lawful permanent residents in any given year.

The worldwide level for annual employment-based preference immigrants is at least 140,000.

Per Country Numerical Limitation

This annual numerical limitation is divided amongst all countries setting a maximum number of immigrants that can secure employment-based immigrant visas (or adjust status) in a given year.

The per-country limit for employment-based immigrants is set at 25,620. The dependent area limit is set at 7,320 (a dependent area means a country that is not an independent nation and is subject to yet another but is not part of that country; example, countries that are dependencies of the United Kingdom are Anguilla, Bermuda, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Guernsey, Jersey, Isle of Man, Montserrat, Pitcairn Islands, Saint Helena, South Georgia and the South Sandwich Islands, Turks and Caicos Islands.)

Preference Categories

The available annual immigrant visas are divided amongst a variety of employment based “preference” categories. There are several categories for employment-based preference categories:

The EB-1 or first preference category which includes Persons of Extraordinary Ability in the Sciences, Arts, Education, Business or Athletics; Outstanding Professors and Researchers; Multinational Executives and Managers – no “labor certification” is required for members of this category.

The EB-2 or second preference which is comprised of Members of the Professions Holding Advance Degrees or People With Exceptional Ability; – most persons in this category require a labor certification.

The EB-3 or third preference which is comprised of Skilled Workers (two years of experience required by the job offer, Professionals (bachelor’s degree required) – a labor certification is required in all cases.

The EW3 Other Workers (unskilled) – a labor certification is required.

The EB-4 Category of Special Immigrants Special Immigrants – Religious Workers – no labor certification is required.

The EB-5 Investor Employment Creation Visa – no labor certification is required.

Priority Date

The “priority date” is the date of filing the “labor certification” application with the Labor Department for all cases that require a labor certification or upon the filing of the I-140 immigrant visa petition for those cases that do not require a labor certification. Such priority date is used to determine the alien’s order and time of immigration as the law provides that those who begin their cases earlier should secure immigrant visas (or adjust status) before those who applied later.

Allocation of Worldwide Numerical Limitation to Each Category

EB-1Category: 28.6% of the worldwide employment-based preference level (plus any numbers not required for fourth and fifth preferences);

EB-2 Category: 28.6% of the worldwide employment-based preference level (plus any numbers not required by first preference);

EB-3 and EW3 Categories: 28.6% of the worldwide level (plus any numbers not required by first and second preferences) with no more than 10,000 allocated to the EW3 Other Workers Category;

EB-4 Category: 7.1% of the worldwide level;

EB-5 Category: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers.

Cut Off Dates – Visa Bulletin

If there are more applicants than there immigrant visas available, then such excess applicants are placed on a waiting list based on the applicants’ priority date

The Department of State, the agency entrusted with administering the annual numerical limitation publishes each month what is known as the Visa Bulletin wherein it notifies consuls, the USCIS and the general public as to whether any given “preference” category for any given country is “current” or whether the demand exceeds the annual limitation.

If there is demand for immigrant visas greater than the numerical limitation, the Department of State establishes a “cut off date” for each country and for each category. If an alien’s priority date is earlier than the cut off date, then the quota is open for such alien and if the priority date is later than the cut off date, then the quota is closed for such person and he/she cannot be scheduled for an immigrant visa interview at a U.S. Consulate or apply for adjustment of status in the USA.

In the case where a person has filed an I-485 adjustment of status application at a time that his/her priority date was “current” and such application has not been approved by USCIS at the time the quota retrogresses, the USCIS cannot approve the adjustment of status application until the priority date again becomes “current.”

The visa bulletin can be found at the Department of State web site at http://travel.state.gov

http://travel.state.gov/visa/frvi/bulletin/bulletin_1770.html

What to do if consular processing was/is being contemplated

If a labor certification has not yet been filed, it can be filed as the numerical limitation does no impede the processing of this step.

If a labor certification has been filed, the Labor Department will process it, as the quota does not affect this process.

If the labor certification has been approved, the I-140 immigrant visa petition can be filed, as the quota does not affect this process.

When the I-140 immigrant visa petition is approved, the USCIS will forward the same to the National Visa Center in New Hampshire where the petition will be retained until the quota is within a few months of opening.

What to do when adjustment of status was/is being contemplated

As above indicated if a labor certification has not yet been filed, it can be filed as the numerical limitation does no impede the processing of this step; if a labor certification has been filed, it will be processed by the Labor Department as the quota does not affect this process; if the labor certification has been approved, the I-140 can and should be filed by as the quota dos not affect the processing of this step.

When the priority date becomes current, an I-485 adjustment of status application can be filed even before the I-140 is approved (the I-485 is filed with a copy of the I-140 filing receipt). If the I-140 has been approved, then the I-485 application will be filed with a copy of the approval notice. It behooves the alien I-140 beneficiary to check the VISA BULLETIN each month to monitor the quota.

If the I-140 immigrant visa petition was filed concurrently with an I-485 adjustment of status, the I-140 will most likely b approved within the normal processing time for the I-140 and the I-485 will be held in abeyance until the priority date becomes current. In other words, the I-485 will not be approved together with the I-140 and may take, in some cases, several years.

Other Considerations

Of course, the delay in having a consular interview, filing an I-485 means that the alien beneficiary may have to file extension applications of their temporary worker nonimmigrant status (H-1B, L-1, etc).

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Posted on July 24, 2012, in Immigration and tagged , . Bookmark the permalink. Leave a comment.

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