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FAQs:Understanding Quotas and Green Card Delays: Why is My Case Taking so Long?

Most people are confused about green card quotas and how they impact application processing times. Permanent immigration through a relative or work can take many, many years. This is because our legal immigration visa allocation system was established in 1965 and has only been amended a few times since, mostly dealing with how unused numbers spill into other categories. In 1965, Congress changed the visa allocation system from race based to country based calculations, designed in part to prevent any one country from monopolizing available immigration numbers. It is the system we still use today. This post attempts to explain the quota system more simply and provides some references to further explanations and background for what is otherwise a complex subject. The terms “permanent residence” and “visa” are used here interchangeably to refer to green card status obtained by 1) seeking an “immigrant visa” at a U.S. Consulate abroad, or 2) through “adjustment of status” in the U.S. at a USCIS office. There are differences in the two processes, but they both lead to permanent residence and they are based on the same family and work related categories. Both procedures require the applicant to be at the front of the line in the quota system in order to complete the application process and receive a green card.

What is the quota?

The quota is the annual allocation of permanent visas or green cards by country of birth and category. It should not be confused with bureaucratic processing delays or “agency processing times” that have more to do with available agency personnel, resources and priorities. Congress established a finite number of visas per country and per category. However, annual demand for green cards usually outweighs supply, thus creating a backlog. For FY2012 that began October 1, 2011, the annual worldwide limits are 226,000 family-based green cards and 140,000 employment-based green cards.

I tell my clients to think of the quota like a movie theater. Suppose there are only 100 seats in the theater but more than 100 people want to see the movie. Once the 100 seats are sold out, everyone standing in line has to wait until the next show. In the case of visas, that means waiting for the next month, or perhaps the next fiscal year to determine if a new group of visas (tickets) are available. Visas are allocated annually by category and country via a formula determined by Congress. Estimates, (note the word “estimate”), of visa availability are published monthly by the U.S. State Department in the “Visa Bulletin.” The State Department refers to categories that are backlogged as being “oversubscribed.” Where visas are available, the categories are said to be “current.” Oversubscribed categories are referenced by a date, called a “priority date.” The priority date is the date in which the applicant first got in line. If the Visa Bulletin shows dates, it means it is issuing visas to applicants who were in line prior to that date. Current quotas are reflected in the visa bulletin by a “C”. If visas are not available at all, the category is noted by a “U.” Priority dates are discussed in more depth below.

The annual “diversity visa” lottery also has a maximum limit. Generally, more applicants are notified than visas are available because many people will turn out not to qualify or will change their minds. But nonetheless, the demand exceeds the supply and creates a backlog or quota that is also reported monthly in the Visa Bulletin. The State Department has published a more detailed explanation of how the quota system works. For academic readers, data crunchers and historians, there are additional statistical reports on historical data, country, category and regional reports published by the State Department here.

Why is the quota important?

In order to receive an immigrant visa abroad at a U.S. consulate, or in order to apply for adjustment of status in the U.S., a visa must be “immediately available.” In other words, the quota must be current in order to complete immigrant visa processing or to file for adjustment of status in the U.S. (Form I485). When there is a backlog in any visa category, the applicant cannot get into the theater and has to stand in line waiting for the next show, using the movie theater analogy above.

Thus, one could have filed initial labor certification (PERM) and/or visa petitions to start a case months or years before, but be unable to file the last set of paperwork due to the quota backlog. The quota need not be current to file PERM or visa petitions to start the immigration process. Another scenario that sometimes occurs is that one may have filed for an immigrant visa or adjustment of status when the quota was current, but while the application was being processed by USCIS or the State Department, the quota retrogressed or became backlogged. In that unfortunate situation, the State Department or USCIS can process the application but cannot grant it until the quota is current again. Therefore, it’s important to track the quota in the Visa Bulletin on a monthly basis.

Who is and is not subject to the quota?

“Immediate relatives” are not subject to the quota. Immediate relatives are parents, spouses and minor, unmarried children under 21 years of age who are sponsored by U.S. citizens. Therefore, there are an unlimited number of green cards available for immediate relatives.

Everyone else is considered to be in the “preference” categories in descending order of how important Congress has deemed the relationships or skill sets the U.S. should attract. Unification of the nuclear family (spouses and minor, unmarried children) of US citizen sponsors are outside the quota system as immediate relatives, yet we subject the same family members with permanent resident sponsors to the quota. Thus, these nuclear families are often separated for years. Sibling relationships have the longest quota waits. The preference categories are set forth below with the number or formula to be used:

Family Based:
First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences
Generally speaking, every family based preference category for every nationality has been backlogged for years. The biggest backlogs are for Filipino siblings of U.S. citizens (23 years), according to the January 2012 Visa Bulletin. The fastest categories are the F2A “worldwide” category, meaning everyone not from the Philippines, Mexico, India and China. But even for worldwide nationalities, it is still an 11-year wait for siblings of U.S. citizens to immigrate.

Employment based

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 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 by Sec. 610 of Pub. L. 102-395. (See again the FY2012 numbers and spillover rules.)

Priority workers in the first category make up three sub-categories: Persons of extraordinary ability, persons who are multinational managers, and outstanding researchers and professors. The second preference category includes persons with advanced degrees or who are of exceptional ability whose work is in the national interest. This group and the three priority worker categories do not require labor market tests or “PERM” labor certifications. Second preference also includes persons with advanced degrees who do require labor certification or are subject to Schedule A Group II labor rules. The third preference category has the highest demand because they are for jobs that require some experience and/or a bachelors degree and all require a labor market test (“labor certification”). Fourth preference special immigrants include some religious workers, returning residents and special immigrant juveniles. The fifth preference category is the EB-5 investor visa category.

Third preference employment based visas have been backlogged for all countries for several years. That category and second preference visas have been heavily backlogged for Chinese and Indian nationals. This is tied to heavy nonimmigrant recruitment and/or high graduation rates of highly skilled Chinese and Indians in the STEM fields in the U.S. There are only 10,000 visas available worldwide for jobs requiring less than two years of experience to perform them. This “other worker” third preference category is chronically backlogged and often unavailable because demand for unskilled workers is very high. This would be the category for nannies, landscapers, and others. Unfortunately, many workers in this category, if they are in the US, are undocumented because there are no temporary visas to allow them to wait out the quota delay. When the quota becomes current, most will require consular processing and will be subject to the 10-year bar requiring a waiver application to return to the US earlier than that. Many will end up not qualifying for their immigrant visas if they do not qualify for a waiver.

Thus, while the number of visas allocated by country are set by Congress, demand for the various categories is subject to many factors in the U.S. and abroad such as the U.S. economy and hiring trends, educational patterns here and in other countries, proximity to the U.S., ability to get legal nonimmigrant visas, foreign relations, cultural factors, and more. In particular, there are years when demand from some countries, such as India and China exceed their per-country limits while demand from other countries do not meet their country per-limits. Thus, proposals have been made to allow for spillover of unused visas into high-demand country categories. Meanwhile, dependents (spouses and unmarried children under 21) of workers immigrating in the employment based categories are also counted against the quota. Some estimates are that only about 60% of the available employment visas are used by the principal worker with the balance going to their spouses and minor children.

How is one’s place in the line determined or what is a “priority date”?

A green card applicant’s place in line is “reserved” as of the date USCIS receives a family based petition (Form I130 or I360), or when an employment based petition is received in the first, second, or fourth and fifth non-labor certification categories (Form I140 or I526), or the date the U.S. Department of Labor receives a PERM application for categories requiring labor certification. These application receipt dates are called “priority dates” and can be found on the application or fee receipt in the “date received” box. Therefore, it is very important to keep these receipt notices to help track priority dates in the Visa Bulletin.

Which country applies?

Priority dates are determined initially by the applicant’s country of birth, not citizenship. However, there are circumstances where the priority date can be “cross-charged” to a relative’s country of birth, if different. For example, suppose a husband and wife are immigrating together based on the Indian husband’s employment based second preference case. If the wife is from the UK, it may be possible to immigrate faster by claiming cross-chargeability to the “worldwide” category. Exceptions to the general rule 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. This is a complicated area where getting legal advice from an experienced immigration attorney is recommended.

How does the State Department know how many visas will be available in any given month?

This is based largely on estimates and reporting from U.S. consulates abroad and all the USCIS offices in the U.S. that process adjustment of status applications. On any given day, like today, there are people all over the world having their immigrant visa interviews at American consulates or adjustment of status interviews at USCIS offices. Many of those cases will get approved. Others will be denied. Still others will remain pending. Perhaps more information is required in a case. Whenever a case is granted, the officer will “pull” a visa number from the available allocations through an internal reporting process. Thus, use of the available visas will fluctuate day-to-day and month-to-month. It can be unpredictable to know if all applicants in a given day who show up for interviews will end up having their cases granted. Officers won’t know until the person is interviewed and the entire case is evaluated. An example is Viet Nam where the consular officials have a very high rate of marriage visa refusals even in good cases. The case will already have been pre-screened by USCIS during the I130 phase and by the NVC prior to the interview date. But the interview can make or break eligibility due to the high fraud rates at the post. This may result in the approved I130 petition being sent back to USCIS with the end result that the case may or may not be granted until months later.

All USCIS and consular post offices report visa/adjustment grants and estimated “documentarily qualified” applicants on hand. Documentarily qualified means the applicant appears to be qualified for the visa category and has submitted the necessary documents required up to that point in time. However, this information is generally before security checks, medical exams and/or interviews have been completed. The Visa Bulletin often includes a few paragraphs about trends and how it came up with the next month’s estimates based on past grants and documentarily qualified estimates. One issue, though, is how both USCIS and the State Department keep track of people on wait lists. This topic has been the subject of at least one court challenge to the interplay of agency processing times, waiting list procedures v. FIFO (first in, first out), and spillover of unused visas.

In addition, there is historical and demographic data to help with predictions. For example, between 1986 and 1990, millions of people gained permanent residence through the amnesty program. These individuals then filed family based petitions for their relatives putting incredible pressure on the Mexican family based categories. As a result, Mexican family members have very long waits even now. The Philippine category reflects historical pressures on family based cases and especially among siblings due to historical ties between the two countries. The family and business based categories for Chinese and Indian nationals reflect science and technology education trends in those countries, developing economies and extensive recruitment by U.S. companies during the dot-com and subsequent technology revolutions in the US. In addition, in 2007, there was a mass filing spike of employment based cases due to a policy quirk that triggered a threatened lawsuit and a change in processing by the State Department. This sudden spike in application filings created a significant backlog that we still feel today.

The State Department recently released a report, Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employment-based preferences Registered at the National Visa Center as of November 1, 2011.” This report breaks down the applications on hand at the National Visa Center (NVC). NVC coordinates immigrant visa processing for the consulates. The report provides comparison trends between 2010 and 2011. The report further breaks down data by country, region and category. Immigrant visas for employment based 2nd and 3rd preference categories are significantly down. This could be due to several reasons. One is that hiring is down because of the economy. Although the H-1B temporary visa category has filled up every year well before the end of the fiscal year, it took longer the last two years, which means employers might be reluctant to start the permanent residence process requiring they conduct labor market tests while so many US workers are unemployed. Another potential reason is that for Indian and Chinese nationals, the quota is so bad, that many are giving up and going home to where their economies are booming and there are more opportunities. The 2nd and 3rd preference categories that require labor market tests are employer and job specific. If the quota is backlogged six to eight years (and H-1B visas are only available for six years), that means many employees are stuck in jobs in which they may not advance, or else they will have to re-test the labor market for the new position and lose priority dates. Much has been written about how these quota backlogs are in essence creating a reverse brain drain in the US.

Policy Considerations
When we think about reforming LEGAL immigration quotas, we have to consider that the current system allows only 140,000 people through the employment-based categories and 226,000 through the family-based preference categories. This is a very small number for legal immigration. (These numbers do not include immediate relatives that are not capped.) However, when we consider there are 10-12 million people here unlawfully, we have to ask ourselves: “Would you be willing to wait 23 years to join a sibling?” “Would you be willing to be separated for two years to join a spouse or minor child?” If you’re an employer needing someone to pick your apples, wash your restaurant’s dishes, or clean your high tech facility’s toilets, there isn’t even a work related category for your prospective employee to immigrate through! If you want to hire someone with a bachelor’s degree in engineering, space science, medical technology or biology, architecture or education, you are going to wait at least nine years if your candidate is Indian, or six years if your candidate is Canadian. If you want to hire a nanny, a welder or a sushi chef, you’ll wait a similar amount of time. These figures are from the January 2012 Visa Bulletin. So, is it any wonder we have illegal immigration when there are jobs in demand but no visas available either as to number or category? It’s not about “enforcement only” legislation. It’s about fixing the system for coming to the U.S. legally for a modern economy and work force.

Congress recently considered a bill to deal with per-country caps. On November 29, 2011, the House of Representatives passed HR 3012, the “Fairness for High Skilled Immigrants Act” that would eliminate the per country caps for employment based cases, mostly impacting Chinese and Indian nationals. The bill would increase the per country caps from 7% to 15% for family based categories. But the transition period provisions would help primarily Chinese and Indian nationals at the expense of all other employment based nationals who are also stuck in the EB-3 preference category. Unfortunately, this bill is not the solution needed to help employers or reduce illegal immigration that stems from long backlogs where people often give up waiting. On November 30, 2011 Senator Grassley stopped all action on HR 3012 in the Senate. But on December 15, in order to release his hold on H.R. 3012, Senator Grassley offered an amendment that would make dramatic changes to the bill including elimination of the family per county limit increase and reducing the employment based per country limit to 15%. Furthermore, his amendment would eliminate the diversity visa program and adds in provisions that would increase enforcement and U.S. worker protections to the H-1B and L-1 visa programs. Unfortunately, these amendments do nothing to improve legal immigration to the U.S.

Who do I complain to about this?

Since Congress sets the annual numbers and formulas for visa allocations and categories of immigration, contact your Congressperson about how the current visa allocation does or does not work for you. Be sure to mention how you have been personally affected by quota delays. There is an easy “Contact Congress” widget on my website. Just plug in your zip code to find your Congressional Representatives and Senators.

USCIS is responsible for adjudication and reporting of adjustment of status applications. Looking at some of the Indian and Chinese immigrant blogs full of complaints about the quota issue, one has to separate out those functions that USCIS CAN control: adjudication of petitions, processing times of applications, collecting and maintaining documents, and call-up systems for when the quotas become current for timely processing. In other words, review of applications, scheduling of interviews, and related bureaucratic procedures not related to the quota allocations. For example, why does it take five months to process a nuclear family, immediate relative or fiance petition? General complaints should go to Congress (about USCIS oversight), and to the USCIS ombudsman. Case specific inquiries should go through the individual case status or processing tiimes listed on the www.uscis.gov inquiry system or through your local constituent services representative in your Representative or Senator’s office. Experienced immigration lawyers can also help you find out the status of your case. Or you can consider suing the agencies.

The State Department runs the National Visa Center (NVC) that orchestrates the document collection and appointments for the U.S. Embassies abroad where people apply for immigrant visas. Once a visa petition has been approved by USCIS, the petition is sent to the NVC. Applicants should stay in touch with the NVC as they track the quota to be sure all necessary documentation has been submitted. Like USCIS, the State Department cannot change the quotas set by Congress. But, like USCIS, the State Department has control over its visa application processing times and wait list management once the approved petition is sent to NVC.

Agency internal processing times can have a huge effect on estimations of visa use for the Visa Bulletin. And, agencies’ bureaucratic processing can theoretically affect how unused visas spill over into categories or countries with higher demand since quota status is all about timing. However, there is not much that can be done if external factors effect demand or application filing spikes.

The President of the United States is responsible for oversight and administration of the Executive Branch of government, which includes USCIS and the State Department. The Administration carries out the statutes enacted by Congress through agency regulation and policy. The President has control via the cabinet agencies under him concerning regulation and/or policies governing bureaucratic processing times before and after the quota is current. The President also has the power to lead by which he can speak to the public and to the Congress to set an agenda for what he wants to accomplish, including goals for agency efficiencies. He has the power to inspire, cajole and insist on action from Congress. But, in the end, as far as the quota is concerned, he cannot move the quota faster or allow some cases to jump over others. To fix the quota system, Congress has to enact a bill the President is willing to sign.

If you, the reader, are a visa applicant or petitioner, you should make sure you indeed qualify for the category you have applied for and should make sure that all of your paperwork is in properly and timely. More importantly, it is your responsibility to keep the agencies involved in your case updated with your address because many years can go by before the process will be completed. Further, you should track the Visa Bulletin monthly. It is up to you to get your case on track once the quota is current for your case. The Visa Bulletin comes out mid-month with the numbers for the following month. Although the State Department and USCIS have their own internal ways of tracking cases, you cannot depend upon them to be timely with getting the case going again once the quota becomes current. You need to be proactive and may need experienced immigration counsel to help you.

If you, the reader, are not a visa applicant, hopefully, now you can appreciate that when we talk about the need for immigration reform, it’s not just about “tightening up the borders” enforcement style. We need to revamp the existing legal immigration system. When people wonder why undocumented immigrants “don’t just get in line”, it’s because there may not be any line to get into (no categories for the relationship or type of job), or the line is so long, it is almost meaningless to even try to get in a line going nowhere for years and years. This is not to condone breaking the law. People should follow the rules. But one can better understand why people take the action they do when the system doesn’t work. And this includes long visa waits in a fast changing world of business for the best and brightest, many of whom are now choosing to return home. I’m leaving for another day, a discussion about why the U.S. consulates won’t just issue available temporary visas to people waiting in the long permanent residence lines, assuming there is even a temporary visa available.