An immigrant visa is issued to a foreign national who intends to live and work permanently in the United States. The Immigration and Nationality Act (INA) restricts the number of immigrant visas that may be issued to foreign nationals seeking to obtain permanent resident status each year. Due to the high demand for the visa and certain category-based and country-based visa allocations, immigrant visas are not always available for certain immigrant visa applicants.
In general, immigrant visa availability is one of the requirements for USCIS to accept filing of and adjudicate adjustment of status applications (Form I-485).[1] That is, in most cases, immigrant visas must be available at the time of filing the adjustment applications and, if approved, at the time of USCIS’ final adjudication.[2]
Accordingly, immigrant visa availability determines the timing when applicants may file their adjustment applications with USCIS. Such applicants may not file their adjustment applications unless immigrant visas are available for them.
Which Types of Applicants Need to Consider the Immigrant Visa Availability?
Immigrant visa availability varies depending on the applications’ categories as follows:
1. Applicants for whom immigrant visas are always available (Immediate Visa Availability)
(1) Immediate relatives
An immigrant visa is always available for immediate relatives of U.S. citizens listed below as the number of immigrant visas available for the immediate relatives are unlimited:
- Spouses of U.S. citizens;
- Children (unmarried and under 21 years of age) of U.S. citizens;
- Parents of U.S. citizens at least 21 years old; and
- Widows or widowers of U.S. citizens if the U.S. citizens filed a petition before they died, or if the widow(er)s filed a petition within 2 years of the citizens’ death.
(2) Additional categories
Adjustment applicants who file the application based on the following status or provisions are also exempt from the numerical restrictions on available immigrant visas. If eligible, such applicants may file an adjustment application at any time or during the period allowed by the applicable law:
- Refugee or asylee status;
- T nonimmigrant (human trafficking victim) status;
- U nonimmigrant (crime victims) status;
- Special Agricultural Worker or Legalization provisions;
- Public laws with certain adjustment of status programs; and
- Persons who obtain relief through a private immigration bill signed into law.
2. Applicants for whom immigrant visas are not always immediately available (Numerically Limited Visa Availability)
On the other hand, applicants filing adjustment of status applications under the following categories are subject to the numerical restrictions on available immigrant visas.[3] Thus, immigrant visas are not always immediately available for them.
- Family-based immigrant preference categories;
- Employment-based immigrant preference categories; and
- Diversity Visa program.
In addition, the number of immigrant visas available are further allocated to their sub-categories (i.e., EB-1, EB-2, F1, F2A). There are limits to the percentage of visas that can be allocated based on the applicants’ country of birth as well (country chargeability).
Accordingly, whether immigrant visas are available, and, if not, how long such applicants must wait until the visas become available vary by:
- The demand for and supply of immigrant visa numbers;
- The number of visas allocated for the immigrant’s preference category; and
- The per-country visa limitations.
When immigrant visas are not immediately available, applicants must wait to file their adjustment applications until the visas become available for them.
For the Numerically Limited Categories: When do Immigrant Visas become Available?
In general, immigrant visas become available when the adjustment applicants’ priority date is earlier than the cut-off date listed in the DOS Visa Bulletin’s chart that USCIS designates monthly. If the cut-off date is “C” (current), immigrant visas are immediately available for the category as well.
1. What is a Priority Date?
The priority date is generally the date when the petition underlying the adjustment application (i.e., Form I-130) was properly filed with USCIS as further discussed below. The priority date determines the applicant’s place in the immigrant visa queue (waiting line) and can be found on Notice of Action (Form I-797) for the underlying petition.
Family-Sponsored Preference Cases
For family-sponsored applicants, the priority date is the date the Form I-130, Petition for Alien Relative or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant is properly filed with USCIS.
Employment-Based Preference Cases
For employment-based applicants, the priority date is the earliest of:
- The date the petition was properly filed with USCIS; or
- If a permanent labor certification is required, the date the certification application was accepted by the Department of Labor.
Does It Affect My Priority Date If the Category of My Underlying Petition Changes?
Depending on change of circumstances after filing a petition, the petition filed and approved under one category automatically converts to a new category. Though the applicant can retain the original priority date, visa availability may change as the new category’s visa availability will be applied. If the new visa availability is disadvantageous, certain family-based applicants can elect to opt-out of the conversion to keep the original category’s advantageous position when eligible.
I Have Multiple Priority Dates. Can I Use an Earlier Priority Date?
When an applicant has multiple priority dates based on the same categories, the applicant may intend to use an earlier priority date than the one for the latest petition. This may happen in certain cases, including when:
- The same petitioner in a family-based category has filed more than one petition for the same classification;
- An applicant is the beneficiary of multiple approved employment-based petitions filed under EB-1, EB-2, or EB-3 preference; or
- In an EB-5 preference, an applicant investor files an amendment of the EB-5 petition.
However, an applicant may not use an earlier priority date if:
- The petition was denied, terminated, or revoked for fraud, willful misrepresentation, or material error;
- The applicant is no longer eligible for the classification for which the petition was filed and does not qualify for automatic conversion;
- DOS automatically revoked the petition due to the applicant’s failure to timely file for an immigrant visa; or
- The applicant has already used the petition to immigrate.
2. What is a DOS Visa Bulletin?
The DOS publishes a Visa Bulletin monthly that summarizes the availability of immigrant visas by underlying petition’s category and applicant’s country of birth. This Bulletin works as a guide for U.S. consulates and embassies to issue immigrant visas. USCIS also uses the Bulletin to determine whether adjustment applications are eligible to be accepted for filing and receive final adjudication.
The DOS Visa Bulletin shows the cut-off dates for immigrant visa availability under each petition’s category in the following two charts:
- Final Action Dates chart; and
- Dates for Filing Applications chart[4].
USCIS designates one of the two charts each month as a reference for immigrant visa applicants to decide whether immigrant visas are available to them in this page. In general, USCIS designates the Final Action Dates chart for such applicants’ usage unless it determines that there are more immigrant visas available than the demand for the fiscal year. If latter is the case, USCIS designates the Dates for Filing chart as reference for the applicants.
In addition, applicants under the following situation may file applications using the Final Action Dates chart during that month:
- When a particular immigrant visa category is “C” (current) on the Final Action Dates chart; or
- When the cut-off date on the Final Action Dates chart is later than the date on the Dates for Filing Chart.
In principle, for the categories subject to numerical restrictions on available immigrant visas, immigrant visas are available when:
- The applicants’ priority date is earlier than the cut-off date based on the category and country of birth shown in the chart on the DOS Visa Bulletin; or
- The cut-off date for the applicants’ category and country of birth shown in the chart on the DOS Visa Bulletin is “C” (current).
What is Visa Retrogression?
In general, when the annual limit of immigrant visas for a category or country has been used up or is expected to be used up soon, the next month’s cut-off date on the DOS Visa Bulletin moves backwards to an earlier date (“visa retrogression”).
When visa retrogression occurs, an instance occurs where an immigrant visa was available at the time of filing of adjustment applications but is not available at the time of final adjudication. In this case, USCIS should still retain, pre-process, and adjudicate the case up to the point of final approval. Once a visa number becomes available, USCIS will complete a final review of the adjustment application.
What is Cross-Chargeability?
As mentioned, immigrant visa availability varies by the underlying petition’s category and applicant’s country of birth. In some situations, an adjustment applicant may select to use the country of birth of the applicant’s spouse or parent who is also seeking an immigrant visa rather than their own to gain benefits from the country’s immigrant visa availability (“cross-chargeability”).
For example, a principal applicant and the applicant’s derivative spouse may use each other’s country of birth. Derivative children also may use either parent’s more favorable country of birth as necessary.
However, parents (a principal applicant or derivative spouse) may never use their child’s country of birth.
The purpose of cross-chargeability is to preserve family unity and allow family members to immigrate to the United States together. It is important to consider possible cross-chargeability eligibility when a visa appears unavailable for any family members.
[1] Applicants for immigrant visas at the U.S. embassy/consulate may not submit required documents for an immigrant visa to the Department of State’s National Visa Center unless their immigrant visas are available either.
[2] As general guidelines for adjustment application’s adjudication, USCIS also verifies underlying basis to adjust status and determines the applicants’ ongoing eligibility, admissibility, and warranty of favorable discretion (if applicable).
[3] In general, family-sponsored preference visas are limited to 226,000 visas per year, and employment-based preference visas are limited to 140,000 visas per year. These limits may be exceeded when there is an allocation from the previous fiscal year’s unused immigrant visas.
[4] This chart indicates when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center for U.S. Consular process.
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