On November 29, 2011, the U.S. House of Representatives passed - by absolute majority, 389 yeas to 15 nays - the Fairness to Highly Skilled Immigrants Act of 2011. Among the highlights of the bill are the elimination of the yearly quota for the Employment-based categories (currently capped at 140,000) and increasing the per-country limit, currently at 25,620 to more than 54,000. For regular viewers and subscribers to our website, we are reprinting the U.S. State Department's article on how immigrant visas are allocated - Crispin R. Aranda
THE OPERATION OF THE IMMIGRANT NUMERICAL CONTROL SYSTEM
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. This information sheet explains the operation of the immigrant number allotment and control system.
1. HOW THE SYSTEM OPERATES:
At the beginning of each month, the Visa Office (VO) receives a report from each consular post listing totals of documentarily qualified immigrant visa applicants in categories subject to numerical limitation. Cases are grouped by foreign state chargeability/preference/priority date.
No names are reported. During the first week of each month, this documentarily qualified demand is tabulated.
VO subdivides the annual preference and foreign state limitations specified by the INA into monthly allotments. The totals of documentarily qualified applicants which have been reported to VO, are compared each month with the numbers available for the next regular allotment. The determination of how many numbers are available requires consideration of several of variables, including: past number use; estimates of future number use and return rates; and estimates of Citizenship and Immigration Service demand based on cut-off date movements. Once this is done, the cut-off dates are established and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first.
If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current". For example: If the monthly allocation target is 3,000 and we only have demand for 1,000 applicants the category can be "Current”.
Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example: If the monthly target is 3,000 and we have demand for 8,000 applicants, then we would need to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.
Only persons with a priority date earlier than a cut-off date are entitled to allotment of a visa number. The cut-off dates are the 1st, 8th, 15th, and 22nd of a month, since VO groups demand for numbers under these dates. (Priority dates of the first through seventh of a month are grouped under the 1st, the eighth through the fourteenth under the 8th, etc.)
VO attempts to establish the cut-off dates for the following month on or about the 8th of each month. The dates are immediately transmitted to consular posts and Citizenship and Immigration Services (CIS), and also published in the Visa Bulletin and online at the CA Web site (www.travel.state.gov). Visa allotments for use during that month are transmitted to consular posts. CIS requests visa allotments for adjustment of status cases only when all other case processing has been completed.
2. DEFINITION OF SOME TERMS:
Priority date: Normally, the date on which the petition to accord the applicant immigrant status was filed.
Allotment: The allocation of an immigrant number to a consular office or to CIS. This number may be used for visa issuance or adjustment of status.
Foreign State Chargeability: Ordinarily, an immigrant is chargeable for visa purposes to the numerical limitation for the foreign state or dependent area in which the immigrant's place of birth is located. Exceptions are provided for a child (unmarried and under 21 years of age) or spouse accompanying or following to join a principal to prevent the separation of family members, as well as for an applicant born in the U.S. or in a foreign state of which neither parent was a native or resident. Alternate chargeability is desirable when the visa cut-off date for the foreign state of a parent or spouse is more advantageous than that of the applicant's foreign state.
Documentarily Qualified: The applicant has obtained all documents specified by the consular officer as sufficient to meet the formal visa application requirements, and necessary processing procedures of the consular office have been completed.
3. BACKGROUND INFORMATION ON THE SYSTEM AND CLARIFICATION OF SOME FREQUENTLY MISUNDERSTOOD POINTS:
Applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.
If an applicant is reported documentarily qualified but allocation of a visa number is not possible because of a visa availability cut-off date, the demand is recorded at VO and an allocation is made as soon as the applicable cut-off date advances beyond the applicant's priority date. There is no need for such applicant to be reported a second time.
(“Why Accurate Completion of Documents is Crucial – IVC Note”)
Visa numbers are always allotted for all documentarily qualified applicants with a priority date before the relevant cut-off date, as long as the case had been reported to VO in time to be included in the monthly calculation of visa availability( Emphasis added). Failure of visa number receipt by the overseas processing office could mean that the request was not dispatched in time to reach VO for the monthly allocation cycle, or that information on the request was incomplete or inaccurate(e.g., incorrect priority date).
Allocations to Foreign Service posts outside the regular monthly cycle are possible in emergency or exceptional cases, but only at the request of the office processing the case. Note that should retrogression of a cut-off date be announced, VO can honor extraordinary requests for additional numbers only if the applicant's priority date is earlier than the retrogressed cut-off date.
Not all numbers allocated are actually used for visa issuance; some are returned to VO and are reincorporated into the pool of numbers available for later allocation during the fiscal year. The rate of return of unused numbers may fluctuate from month to month, just as demand may fluctuate. Lower returns mean fewer numbers available for subsequent reallocation. Fluctuations can cause cut-off date movement to slow, stop, or even retrogress. Retrogression is particularly possible near the end of the fiscal year as visa issuance approaches the annual limitations.
Per-country limit: The annual per-country limitation of 7% is a cap, which visa issuances to any single country may not exceed. Applicants compete for visas primarily on a worldwide basis. The country limitation serves to avoid monopolization of virtually all the annual limitation by applicants from only a few countries. This limitation is not a quota to which any particular country is entitled, however. A portion of the numbers provided to the Family Second preference category are exempt from this per-country cap. The American Competitiveness in the Twenty-First Century Act (AC21) removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.
Applicability of Section 202(e): When visa demand by documentarily qualified applicants from a particular country exceeds the amount of numbers available under the annual numerical limitation, that country is considered to be oversubscribed. Oversubscription may require the establishment of a cut-off date which is earlier than that which applies to a particular visa category on a worldwide basis. The prorating of numbers for an oversubscribed country follows the same percentages specified for the division of the worldwide annual limitation among the preferences. (Note that visa availability cut-off dates for oversubscribed areas may not be later than worldwide cut-off dates, if any, for the respective preferences.)
Note: Emphasis such as bold or underlined text are not on the original.