The US immigration Quota System
What is the Quota System?
The quota system is designed to ensure that only a certain number of non-citizens become legal permanent residents (that is, get a Green Card) every year.
What are the categories?
The categories group candidates for permanent residency by the reason they would immigrate (that is, by who sponsors them).
There are three broad groups: immediate relatives, family-based immigrants and employment-based immigrants. In addition, there are special quota systems for other purposes that are not covered here, such as the DV lottery, asylum quotas and quotas for Green Cards through cancellation of removal.
Immediate relatives can always receive a Green Card without any numeric limitation. To qualify, you have to be either the spouse or unmarried minor child (under 21) of a US citizen, or you have to be a parent of a US citizen, AND the US citizen child must be 21 years or older.
Family-based immigration categories have a limit of 226,000 annually.
- Family 1st: unmarried sons and daughters of US citizens, any age. Since minor unmarried sons and daughters are immediate relatives, this in practice only applies to adults. The number is limited to 23,400.
- Family 2nd: dependents of Green Card holders. This group is further subdivided into Family 2A (spouses and minor children) and Family 2B ( unmarried adult children). The number is limited to 114,200 (but this limit can be broken in certain cases). Of this number, 77% goes to Family 2A and 23% goes to Family 2B. In addition, Family 2A is partially exempt from the per-country quota.
- Family 3rd: married sons and daughters of US citizens, any age. Note that there is no corresponding category for Green Card holders! The limit is 23,400
- Family 4th: brothers and sisters of US citizens. The limit is 65,000.
The employment-based categories are covered elsewhere in this FAQ.
I qualify in one of the family-based categories. Does that mean I can get a Green Card?
Unfortunately, no. It means that you are eligible to get in line to apply for one. Depending on the category, the wait ranges from two or three years to well over twenty years - and by the time you qualify, the time may well have increased considerably. Sometimes, the backlogs double or triple with very short notice.
How can I find out when I qualify for a Green Card?
First, you need to find out what your Priority Date is. Usually, this date is the day your I-130 was filed (in the family-based categories), or the date your Labor Certification was filed (in the employment-based categories).
You need to get a copy of Department of State's Visa Bulletin. Look up your category and your country of birth. The date you will find in the table on this document is known as the Current Priority Date. You are eligible if your Priority Date is earlier than the current priority date.
The visa bulletin is updated once a month. Do be aware that the dates do NOT necessarily change by one month every month. In fact, they usually don't. Quite frequently, the current priority date only moves by one week or less at a time, or in some cases it even retrogresses (moves backwards in time!)
I read the term A visa number is immediately available to me in some legal texts. What does that mean?
This is just another way of saying Your priority date is current. The term derives from the way the quota actually is counted internally within Department of State.
At what point in the process is it important that my priority date is current?
This depends on your situation. If you are outside the USA, the consulate will notify you when your priority date is current. The actual date that matters is the date the immigrant visa is issued (usually, the same date the interview takes place). An immigrant visa can only be issued if during that month, your priority date is current.
If you are inside the USA and apply for adjustment of status, the priority date is important at two points in the process. First, you can only file an I-485 if your priority date is current. Second, your I-485 can only be approved if your priority date is current. Sometimes, when priority dates retrogress, you may have been able to file the I-485 one month, and when USCIS is ready to approve your I-485, the priority date is no longer current. In that case, they will put your case back on the shelf and keep it pending. You should carefully monitor your case and be sure to call USCIS to make sure they remember to pull it off the shelf again when your priority date is current again.
My priority date is current, but the consulate is refusing to issue an immigrant visa anyway, saying that this is because there is no quota number left. How can this happen?
This can sometimes occur in September, or rarely earlier in the year.
This occurs if the priority date was set too generously, and enough people already received their Green Cards to fill the full annual quota. In this case, it would be actually illegal for Department of State to issue an immigrant visa beyond the quota. Remember that the legally binding factor is the total annual quota; the priority date is merely a mechanism to implement it.
If this happens, you should see the visa category change to "Unavailable" in the next month. A new quota will become available in October. There is unfortunately no guarantee that your priority date will still be current in October. In fact, it is likely that the priority date will be set a bit earlier to avoid repeating this situation.
I see in the visa bulletin that my category has a backlog of four years. That means I can get a Green Card four years from now, right?
Unfortunately, no. It means that people who applied four years ago are now eligible. If in the meantime more than four year's worth of people applied (which is likely in most family-based categories), then your wait will be longer. The actual time you have to wait is unpredictable and most likely much longer than the visa bulletin suggests.
For an example, look at the Family 1st category. At the time of this writing (Visa Bulletin for July 2003), the current priority date for most countries is December 15, 1999 - almost four years backlog. In June 2000, the current priority date in this category was December 15, 1998. In other words, in this category it took three years for the current priority date to just move by one year! If this rate persists (which by no means is certain), somebody who applies today would be eligible for a Green Card in about ten years rather than the three 1/2 years that the visa bulletin suggests.
Why is the backlog different for Mexico, China, India or the Philippines?
There actually are two separate quota systems in place. The first quota system limits the number of people who can apply in each category, regardless of their country of birth. The second quota limits the number of people who can immigrate from any one country (this goes by the place you were born, not your nationality!). This per-country quota says that no country can send more than 7% of the total worldwide immigration (this translates to 25,620). Unfortunately, this system puts large countries at a disadvantage; the quota is the same for India and China with a billion people each as for Nauru, with approximately 10,000 people.
If many people from one country want to immigrate to the USA. the total number of immigrants may reach the per-country quota, and the number of people admitted in all immigration quotas will be reduced for this country.
Dependent areas, such as Hong Kong, are counted separately and have a lower annual quota.
I looked up the quota backlog on the Dept. of State site, and the priority date is some time in 1992. But the CIS Web site says that they are processing applications from 1998. What gives?
Thanks to Mike for suggesting this question.
These two dates really have nothing much to do with each other. The priority date is a delay that is written into the law. It determines when you are eligible to file an application for an immigrant visa or for adjustment of status.
The CIS date tells you when they are actually processing a petition (the form I-130).
So let's say that you filed a petition on March 7, 1997. In that case, you would have a priority date of 1997. Because CIS is processing I-130s from 1998, you would probably already have an approved I-130 in your hands. But you would still be waiting quite a few years. Just put the approved I-130 into a bank vault or some other safe place. As soon as the current priority date has advanced past March 7, 1997, you are eligible to actually use the I-130 - until that day, it is just a meaningless piece of paper.
In which country do I fall?
You should be asking this question even though it may seem obvious if you are from a large country that is likely to send many immigrants to the USA. These countries are currently India, Mexico, the Philippines. You should also ask this question if you are from China, since this country teeters on the brink of being such a high-immigration country.
You should also be asking this question if you participate in the Green Card lottery, regardless of where you are from.
Your country of chargeability is usually determined by your place of birth. If your place of birth has changed countries, what counts is the country your place of birth is in today. For instance, if you were born in the now-Polish cities of Gdansk or Wroclaw before World War II, when they were the German cities of Danzig or Breslau, respectively, you would fall under the Polish quota. Similar situations arise in the former Soviet Union, as well as many other countries.
There are certain situations when you are allowed to be counted in a country different from your country of birth. This is know as alternate chargeability (or sometimes alternate nativity). The most common situation is if you are married, and your spouse is chargeable to a different country. In this case, you are free to choose your spouse's country instead of your own.
I was born in what today is a disputed territory. What country do I fall under?
Check with a US consulate for policies regarding such areas. Examples include the Gaza Strip and West Bank, as well as the Kuril Islands between Japan and Russia, Taiwan and a number of other areas.
I was born in the USA. What country am I chargeable under?
Usually, none. You are most likely already a US citizen.
The exception to this rule is if your parents were in the USA as diplomats. In that case, you would be chargeable to your country of citizenship, or if you are not a citizen of any country, to your last country of residence (presumably, if you are already residing in the USA, that would mean the previous place of residence).
There have been some rumors that a special immigration category exists for children of diplomats born in the US. I have no further information as to the truth of this rumor, and have doubts about the truth of them. Any such category should be listed in the INA, but I did not find anything there.
How are the priority dates determined?
Each month, an official in the US Department of State looks at a number of statistics. Specifically, he looks at how many immigrant visas and Green Cards have been issued during the fiscal year so far to applicants from each country, and in each category. This will tell him how many are left in each category. He divides this by the number of months left in the year to find out how many should be approved in the next month.
He also looks at how many people may no longer qualify, are not interested any more, or for other reasons not pursue immigration, and how processing delays at USCIS would affect the process, and makes an educated guess of how many petitions should become now become eligible to hit the target quota.
Next, he looks at how many petitions have been filed, and when they have been filed. He then essentially counts of the oldest ones until he has enough to approximately hit the number of people who should get a GC or immigrant visa this month. This determines the priority date in the category.
All this has to be done separately for each country.
If his guess is wrong, or if USCIS suddenly develops or clears a processing backlog of Adjustment of Status applications, it sometimes happens that far more or fewer immigrant visas or Green Cards are issued during a month than predicted. In that situation, he needs to adjust the current priority date for the next month to correct for this. This is why sometimes the priority dates retrogress. If such a situation causes the whole annual quota to be exceeded, he has to mark the category as "Unavailable" (in the visa bulletin, you will see the letter U to indicate this situation).
This is an annual quota. What exactly is the year this refers to?
The US fiscal year, which runs from October 1 of the previous year through September 30. Any quota numbers unused by September 30 will be lost. If the quota has been exceeded in one category, it will remain unavailable until September 30. A new quota becomes available on October 1.
This web site is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. I made an attempt to provide somewhat accurate information as of the time of this writing, but the situation may well have changed by the time you read this. I am not a lawyer. I have no legal training. Please, if in doubt, be sure to use the services of a professional lawyer whom you trust. Keep in mind that there are no guarantees in immigration law. Most decisions are discretionary in nature, and even a competent immigration lawyer cannot guarantee success.
If you have further questions, please consider posting them in the newsgroup alt.visa.us, where there are a number of helpful individuals. I discourage emailing me directly. If you still want to email me your question, please send them through the Contact page. Don't expect an immediate answer, and I reserve the right to ignore your mail completely, too!
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