VIII. INFORMATION RELATING TO PROCESSING OF

IMMIGRANTS AND NONIMMIGRANTS

(Source: Visa Office, Department of State, as of April 1, 1995)

A. PROVISIONS OF THE LAW AND NUMERICAL LIMITATIONS ON IMMIGRANT VISAS

Some form of numerical limitation has been imposed on immigration into the United States since 1921, although certain classes of immigrants have traditionally been able to obtain visas outside those limitations. The Immigration Act of 1990 modified this concept by establishing an overall limit within which immediate relatives (IR's) and certain special immigrants would continue not to be delayed by the requirement of an available visa number but those who qualified as such relatives in one year would be "counted" as a total and deducted from the overall ceiling the following year to determine certain other ceilings. Outlined below are the basic elements of the system applicable at present; unless otherwise stated, the section of law cited refers to the Immigration and Nationality Act, as amended.

I. Classes not subject to the numerical limitations:

(A) Immediate Relatives

(1) Spouse and children of U.S. citizens and parents of citizens at least 21 years of age (Sec. 201(b)(2)(A)(i)).

(2) Certain surviving spouses of deceased U.S. citizens (Sec. 201(b)(2)(A)(i)).

(B) Special Immigrants

(1) Returning residents (Sec. 101(a)(27)(A) and Sec. 201(b)(1)(A)).

(2) Certain former U.S. citizens (Sec. 101(a)(27)(B) and Sec. 201(b)(1)(A)).

(C) Others

(1) Child born abroad subsequent to issuance of immediate relative visa to parent (Secs. 211(a) and 201(b)(2)(A)(ii)).

(2) Child born to a lawful permanent resident temporarily abroad (Secs. 211(a) and 201(b)(2)(B)).

(3) Vietnam Amerasians, a category created by Sec. 584 (as contained in § 101(e)) of P.L. 100-204 for Vietnam Amerasians and their immediate family members. Initially time-limited to March 20, 1990, the provision was made permanent by P.L. 101-513.

(4) Refugees admitted under § 207 or adjusted under § 209 (Sec. 201(b)(1)(B)).

(5) Aliens legalized under §§ 210, 210A, or 245A (Sec. 201(b)(1)(C)). (6) Aliens whose deportation is suspended under § 244(a) (Sec. 201(b)(1)(D)).

(7) Aliens acquiring lawful permanent resident status under § 249 (Sec. 201(b)(1)(E)).

II. Numerically limited classes

(A) Special Categories

(1) Transition diversity immigrants. Sec. 132 of P.L. 101-649 provided 40,000 visa numbers annually during fiscal years 1992, 1993, and 1994 for natives of foreign states adversely affected by the 1965 Act and their spouses and children, of which at least 40% are reserved for natives of Ire

land. Under a subsequent technical amendment (§302(b)(6) of P.L. 102232), natives of Northern Ireland are deemed to be natives of Ireland for the purpose of this provision. The Immigration and Nationality Technical Corrections Act of 1994 (P.L. 103–416 of Ŏctober 25, 1994) further amended the provision to ensure full utilization of the program's numbers, i.e., those available but unused in the final year. It authorized, during fiscal year 1995 only, the issuance of those visas authorized but not issued during fiscal years 1992 through 1994. This amendment was effective upon enactment so that the visas could be issued during the fiscal year that had just started. [For more detailed information on this program, see App. VIII.B.4.] (2) Note that the separate numerical limitations on special immigrants defined in Sec. 101(a)(27)(E), (F), and (G) were repealed by Sec. 212 of P.L. 103-416.

(B) Numerical Limits under §§ 201, 202 and 203

In addition to the overall limits described below, the INA contains a per-country ceiling to preclude preemption of the annual numbers by one or more foreign states of heavy emigration. Under the formula in the Immigration Act of 1990, the per-country limit is at least 25,620, i.e., 7% of the combined total available to family-sponsored and employment-based immigrants. The permanent diversity classification, which went into effect at the beginning of fiscal year 1995, contains a separate 7% per-country limit on applicants under that provision (Sec. 203(c)).

As a selective mechanism to enable distribution of the numbers to the immigrants desired, a system of preference classes, commingling certain types of relatives and needed workers, has long existed. The Immigration Act of 1990, however, divided such preference classes into two broad categories: family-sponsored immigrants and employment-based immigrants, with a separate numerical limitation for each category. It also added a third broad category, Diversity Immigrants, sometimes referred to as "new seed", which went into effect in fiscal year 1995.

(1) Family-sponsored immigrants (Sec. 203(a))

(a) The overall ceiling for relatives is now 480,000 (it was 465,000 in fiscal years 1992, 1993 and 1994), from which the total of immediate relatives and other family classes which are exempt from the numerical ceiling (I.A. and I.C.(1) and (2) above) are deducted to determine the level of family-based preference immigration. Although the residuum could exceed or be less than 226,000, that figure is established as a minimum for family-sponsored immigrants.

(b) Specifically, if such numerically-exempt classes are fewer than 254,000, the family-sponsored preferences will be entitled to more than 226,000. On the other hand if family-related, numerically-exempt classes exceed 254,000, the "floor" of 226,000 will protect the relative-reference classes from severe reductions.

(2) Employment-based immigrants (Sec. 203(b))

The overall ceiling for this category is 140,000. The term “employmentbased" is more broadly defined than a strict interpretation would provide; that is, it encompasses all non-family immigration (other than diversity immigrants), whether or not the alien is actually destined to employment in the United States.

(3) Diversity immigrants (Sec. 203(c))

This classification became effective with the start of fiscal year 1995. It is designed to provide immigration opportunities for aliens from foreign states from which immigration levels are low relative to the level from other countries. The annual limitation on this class is 55,000. (C) Preference classes as set forth in § 203

Class limitations are expressed in absolute numbers for the familysponsored immigrants and by percentages applied against the annual limitation for the employment-based category as set forth in §201. There are no sub-categories to the diversity immigrant classification.

(1) Family-sponsored preference classes

(a) First preference: Unmarried sons and/or daughters (i.e., offspring aged 21 or older) of United States citizens: not more than 23,400 (plus any numbers unused by the family fourth preference; (sec. 203(a)(1)).

(b) Second preference: (A) Spouses and children of lawful permanent residents, and (B) unmarried sons and/or daughters of lawful permanent residents: not more than 114,200, plus any numbers not required for the family first preference. Moreover, any numbers by which

a year's worldwide family-sponsored preference limit exceeds the 226,000 minimum are to be added to the second preference, rather than to the overall family limit. Finally, of the family second preference total limit, 77% are designated for subcategory (A) (spouses and children), of which 75% are to be issued without regard to the per-country limit; i.e., these numbers go to the applicants with the earliest priority dates regardless of their country of chargeability; (sec. 203(a)(2)).

(c) Third preference: Married sons and daughters of United States citizens: not more than 23,400, plus any numbers not required by first and second family preference; (sec. 203(a)(3)).

(d) Fourth preference: Siblings of United States citizens who are at least 21 years of age: not more than 65,000 plus any numbers not required by the first three family preferences; (sec. 203(a)(4)). (2) Employment-based preference classes

(a) First preference: Priority workers (aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers): not more than 28.6%, plus any visa numbers not required by the fourth and fifth employment preferences; (sec. 203(b)(1)).

(b) Second preference: Members of the professions with advanced degrees and aliens of exceptional ability: not more than 28.6%, plus any numbers unused by the first employment preference; (sec. 203(b)(2)).

(c) Third preference: Skilled workers, professionals (without advanced degrees), and other (i.e., unskilled) workers: not more than 28.6%, plus any numbers unused by the first two employment preferences, of which not more than 10,000 numbers are available for unskilled workers; (sec. 203(b)(3)).

(d) Fourth preference: Special immigrants (other than returning residents and certain former citizens): not more than 7.1%, of which not more than 5,000 numbers may be allocated for certain religious workers. There is no "fall-down" of numbers from higher classes into this class; the limit is absolute. The class includes not only aliens defined as special immigrants in past legislation (ministers of religion, certain employees/retirees of the U. S. Government abroad, Panama Canal and/ or Zone employees, certain doctors, certain international organizationsrelated aliens) but also two new classes, aliens dependent on a juvenile court and certain members of the U.S. Armed Forces recruited abroad, as well as a time-limited expansion of the minister of religion provision to include certain religious workers. These provisions are found in § 101(a)(27)(C) through (K) and § 203(b)(4).

(e) Fifth preference: Employment creators, i.e., aliens whose investments will create employment for at least ten United States citizens and/or lawful permanent residents: not more than 7.1%, with no falldown; (sec. 203(b)(5)).

(3) Diversity immigrants:

Eligibility for this class resides in two principal criteria: the alien is from an area from which immigration is generally lower than from other areas, and the alien meets certain educational or skill requirements (a high school education or equivalent or two years' work experience in an occupation that requires at least two years' experience or training). The overall limit (55,000) for this class is made available to natives of so-called “lowvolume" countries on a regional basis. The successful registrants for this class are those selected at random within the six specified geographic regions. See sec. 203(c) for a description of the formula by which this distribution is calculated.

III. Related Provisions

(A) The applicability of the labor certification requirement (§212(a)(5)(A)) for immigrants is explicitly restricted to aliens in the 2nd and 3rd employmentbased preferences. Inasmuch as that second preference provision authorizes the Attorney General to waive the requirement for an employer in certain cases, however, the labor certification is also waived, by regulation, in those cases as a matter of practicality.

(B) A spouse or child accompanying or following to join a preference immigrant (whether under sec. 203(a), 203(b), or 203(c)) is entitled to the same classification and priority date as the principal alien if not otherwise entitled to an immigrant classification and the immediate issuance of a visa. (sec. 203(d))

(C) The Marriage Fraud Amendments of 1986 (P.L. 89–639, November 10, 1986) established a conditional immigration status for aliens whose entitlement

to an immigrant classification derived from a marriage entered into less than two years prior to admission. This provision affects not only the spouse of such marriage but also any sons or daughters thereof. The conditionality may be removed only by approval of a petition jointly filed by the marriage partners during the 90-day period prior to the second anniversary of acquiring conditional

status.

(D) Aliens who obtain a visa or adjustment of status under a private law are subject to the numerical limitations in §§201 and 202 unless explicitly exempted therefrom.

(E) An ahen may adjust status from that of nonimmigrant to lawful permanent resident, subject to certain conditions, through the Immigration and Naturalization Service. Unless the adjustment is in a numerically-exempt category, it is charged against all appropriate limitations. (sec. 245)

B. ALLOCATION OF IMMIGRANT VISA NUMBERS

I. The Operation of the Immigrant Numerical Control System (Source: Visa Office, Department of State, as of April 1, 1995)

The Department of State is responsible for administering the provisions of the Immigration and Nationality Act (INA) relating to 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 the Visa Office (VO) administers on the basis of twelve monthly allocations. In order to determine the appropriate 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 and Naturalization Service (INS) 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. Family and employment preference cut-off dates are ordinarily set at 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.

Visa number allocations within the various numerical limitations of the Diversity category established under §§201 and 203(c) are essentially similar to that for family and employment preference number allocations. The ranking assigned to a case by the annual random order Diversity "lottery" serves as the priority date” of the principal applicant.

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) 6631541 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 status under § 203(a) or 203(b) has been approved or if a petition seeking classification under § 203(c) has been randomly selected for immigrant visa processing.

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 reports 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 during the month for which allotted, because the applicant either 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 toward the end of the fiscal year as visa number usage nears the annual limi

tations.

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 was controlled after 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 has virtually eliminated 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

89-853 95-18