There are currently more people who want to immigrate to the United States than there are available Immigrant Visas under the quota system. Therefore, waiting lists have been established to assure that those who applied first will receive visas first.

The waiting list is divided into two major sections: permanent residence based on Employment, and permanent residence based on Family Sponsorship. Only “immediate relatives” of U.S. citizens are not subject to the numerical quota limitations on their immigration.

A system of Priority Dates has been created by the U.S. State Department. The Monthly Visa Bulletin indicates the priority dates which are current for visa issuance or adjustment of status. A priority date is established on the filing date of a Immigrant Petition (in most cases Forms I-130 or I-140), or Labor Certification, now commonly known as PERM. A priority date is “current” if the Immigrant Petition filing date is earlier than the date on the visa waiting list; or the Labor Certification filing date is earlier than the date on the visa waiting list. If an individual has an approved Immigrant Petition, and his or her priority date is earlier than the date on the State Department visa waiting list, then he or she is eligible to adjust status (if inside the U.S.) or go through visa processing at a U.S. Consulate (if outside the U.S.)

To refresh your memory, there are four Family Based (F-1 to F-4) preference categories. There are 5 Employment Based (EB-1 to EB-5) preference categories. Check the Visa Bulletin for visa availability.

In inspecting the priority date chart, you may have noticed that persons from China, India, Mexico, and the Philippines may be subject to longer waiting times. In order to prevent any one country from hogging all available visas, the quota system is fine-tuned to prevent the citizens of any one country or a small set of countries from using more than a set percentage of the total visa quota during any single year.

The law provides that an applicant’s country of birth, rather than his or her current citizenship, is the country of charge-ability for immigrant visa purposes. An applicant is normally able to utilize his spouse’s country of birth as the country of charge-ability. For example, an applicant from, say, China, whose priority date is not current, will be able to adjust status along with his spouse if the priority date of his spouse (who is from, say, Monaco) is current based on her country of charge-ability (Monaco), even if she is the derivative beneficiary who is following to join her husband who has been sponsored by his employer.

Please contact our firm for case evaluation if you have any questions.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]