Why is there a wait for some visas?

There is a wait for some family and employment based visas.

Congress has placed a numerical limitation on the number of individuals who may permanently reside in the United States with certain exceptions.  Family sponsored immigrant visas are limited to a baseline of 480,000 per year.[1]  Employment based immigrant visas are limited to a baseline of 140,000 per year.[2] Finally, the diversity lottery is limited to a baseline of 55,000 immigrants per year.  This leads to a total numerical limitation – subject to exempt categories – of 675,000 immigrant visas per year.  INA § 202, which provides for per-country limitations and the diversity lottery seek to achieve the goal of balanced immigration from all parts of the world.  The preference system leads to significant backlogs for available visas in most categories.  This may lead to extended family separation or the unavailability of a qualified employee not otherwise available in the job market.[3]

The calculation for the determining the per-country limit and preference system can be complex.  The annual level of family based immigrant visas is determined by subtracting the number of “immediate relative” visas (explained in 6.2) and the number of aliens paroled into the United states from the 480,000 per year annual limit (plus any unused employment based categories from the previous year).  By law, family based immigration may not fall below 226,000 per year.[4]

            Per-Country Limits

Congress established per country levels at 7% of the worldwide level.[5] The per-country limit is not a quota for certain countries.  The country limit is described the U.S. Department of State as a system, “to avoid the 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.”[6]

Immediate relative visas and diversity immigrants are not included in the per country limit.  In addition, 75% of the visas allocated to spouses and children of LPRs are not subject to the per country limit.[7]

            Backlog

The number of individuals eligible to immigrate each year to the United States greatly exceeds the worldwide level of immigrant visas available.  This leads to a backlog of approved family based petitions that are eligible to immigrate, but no visa is available.  The overwhelming percentage of the backlog is comprised of family based categories.  Only a small percentage of the backlog is attributed to employment based categories discussed later in this chapter.

Family and employment sponsored visas are issued in the order in which a petition is filed.  A family member is given a priority date upon the approval of the petition.  As soon as the priority date becomes current then a visa is available for the individual seeking to immigrate.  The spouse and child of a LPR are entitled the same priority date as the principal immigrant whether accompanying the immigrant or following to join.  The spouses and children of the immigrant are known as derivatives.  If the visa demand is greater than the per country limit then those visas are prorated.  Currently, China, India, Mexico and the Philippines are oversubscribed countries.  This means that there are more family members waiting for an immigrant visa in these particular countries than immigrant visas available in a given year.  Demand for immigrant visas continues to increase, but the cap established by Congress has not increased.  This has resulted in a backlog that continues to increase.

Individuals waiting to immigrate can find a chart issued each month by U.S. Department of State known as the Visa Bulletin.  The visa bulletin posts a “priority date” in each visa category.  A “priority date” is assigned to each applicant on the date of their initial application (either the filing of the I-130 by a family member or I-140 by an employer). Only individuals with a priority date earlier than the listed cut-off date on the bulletin will have an immigrant visa available. The visa bulletin is not an estimate for individuals currently applying.  The visa bulletin looks backward to indicate how long individuals in a particular category have been waiting for an immigrant visa. Currently, the brother or sister of a United States citizen can wait over a decade for their priority date to become current.  The wait is even longer for the brother or sister of Mexican or Philippine national.

[1] INA § 201(c)(1)(A)(i)

[2] INA § 201(d)(1)(A)

[3] Cubans who are the beneficiary of an approved family-based petition – who are not immediate relatives – may be paroled into the United States while awaiting their priority date. 72 FR 65588 (November 21, 2007)

[4] Wasem, Ruth Ellen, “Permanent Legal Immigration to the United States: Policy Overview,” Congressional Research Service, December 17, 2012, 7-5700, R42866.

[5] INA § 202(a)(2)

[6] Bureau of Consular Affairs, “Operation of the Immigrant Numerical Control Process,” U.S. Department of State, undated, pg. 3.

[7] INA § 202(a)(4)