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Allen E. Kaye
The U.S. Department of State has provided a information
sheet on the numerical limitations on immigrant visa issuances with an explanation of the operation of the immigrant number allotment and control system.
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 for 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, and priority date. No names are reported. U.S. Citizenship and Immigration Services (USCIS)
demand for adjustment of status cases awaiting forward
movement of the applicable cut-off date are reported to VO
as the cases are preadjudicated. 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 additional USCIS demand based on final action
date movements. Once this is done, the final action 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 visa availability final action date
is established. The final action 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 5,000 applicants,
then we would need to establish a final action 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 final action
date are entitled to allotment of a visa number. The final action dates are the 1st, 8th, 15th, and 22nd of a month, since
VO groups demand for numbers under these dates.
VO attempts to establish the final action dates for the following month on or about the 8th of each month. The dates are
immediately transmitted to consular posts and USCIS, 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 and USCIS.
USCIS requests visa authorization for adjustment of status
cases only when all required 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 USCIS. 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 final action 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 re-
quired documents specified by the consular officer as suffi-
cient to meet the formal visa application requirements, and
necessary processing procedures of the consular office have
3. BACKGROUND INFORMATION ON THE SYSTEM AND
CLARIFICATION OF SOME FREQUENTLY MISUNDERSTOOD
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 final action 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 final action dates. If an applicant is reported documentarily qualified but allocation of a visa number is not possible
because of a visa availability final action date, the demand
is recorded at VO and an allocation is made as soon as the
applicable final action date advances beyond the applicant's
priority date. There is no need for such applicant to be reported a second time.
Visa numbers are always allotted for all documentarily qualified applicants with a priority date before the relevant final
action date, as long as the case had been reported to VO in
time to be included in the monthly calculation of visa availability. 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 listed).
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 final action date be
announced, VO can honor extraordinary requests for additional numbers only if the applicant's priority date is earlier
than the retrogressed final action 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 final action 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, or if there are unexpected
surges in demand.
Per-country limit: The annual per-country limitation of 7
percent 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 is 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
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 final action 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 final action dates for oversubscribed areas may not be later than worldwide final action
dates, if any, for the respective preferences.)
Allen E Kaye, a Phi Beta Kappa graduate of Queens Col-
lege of the City of New York, Columbia Law School (JD)
and New York University Law School (LLM), is the Pres-
ident of the Law Offices of Allen E Kaye and Associates
and Of Counsel to Pollack, Pollack, Isaac and DeCicco.
He is a past National President of the American Immi-
gration Lawyers Association and Co-Chair of the Immi-
gration Committee of the Queens County Bar
Association. He has been selected by Martindale-
Hubbell as a 2014 “Top Rated Lawyer” in the practice
of Labor and Employment (for Immigration) and the
2017 Edition of The Best Lawyers in America.
Questions for publication may be sent to Kaye at 225
Broadway, Suite 307, New York, NY 10007, or by email
at AllenEKaye5858@gmail.com or firstname.lastname@example.org
DOS Fact Sheet on the Immigrant
Numerical Control System
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