Allocation of Immigrant Visas for Employment
To apply for an immigrant visa, a foreign citizen must be sponsored by an immediate family member who is a U.S. citizen or green card holder, or by a U.S. employer. Visas are immediately available to applicants sponsored by immediate family members. But because Act 203 of the Immigration and Nationality Act (INA) limits the number of employment-based immigrant visas by country, a waiting list forms once there are more qualified applicants than the number of visas allocated. This causes little delay for qualified workers from most countries, but professional degree-holders born in India or Mainland China may wait for years.
The Immigration Petition
To understand how the INA allocates immigrant visas, you need to understand that in order to become eligible for an immigrant visa, someone must first file an immigration petition on your behalf. The immigration petition is a document that shows the U.S. government that there’s a reason for you to live in the U.S.If you are applying for a visa because one of your family members is a U.S. citizen or permanent resident, that relative needs to file Form I-130, Petition for Alien Relative on your behalf. A U.S. citizen’s husband or wife, parents and unmarried children who are less than 21 years old are the citizen’s “immediate relatives.” Immediate relatives receive visa numbers immediately. Once you receive a visa number, you can submit your visa application and prepare for your visa interview and appointments.
If you’re applying for a visa to work in the U.S., your employer needs to petition for you. There are four categories of workers: EB-1 Priority Workers; EB-2 Professionals with Advanced Degrees or Persons with Exceptional Ability; EB-3 Professional or Skilled Workers; and EB-4 Special Immigrants (such as religious workers, Panama Canal employees, and certain doctors).
For applicants qualified for EB-1, EB-2 or EB-3 visas, the employer must file Form I-140, Immigrant Petition for Alien Worker. (If you qualify for an EB-2 or EB-3 visa, your employer must first file a labor certification with the Department of Labor before filing Form I-140.) If you qualify for an EB-4 visa, your employer must file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
Employment-based visas in Category 2 (EB-2) are in high demand. The EB-2 visa is for professionals with advanced degrees and people with exceptional ability in science, art or business. You must have the equivalent of a U.S. master’s degree, a U.S. bachelor’s degree followed by five years of working in your specialty with increasing job abilities, or significantly above the ordinary skills in science art or business.
If you qualify for an employment-based visa, understanding how the INA allocates these visas can help you begin to estimate how long the process might take for you. The allocation is summarized below.
INA Allocation of Employment-based Immigrant Visas
To apply for a visa, you need to first apply for and receive a visa number. Applications are processed in the order in which your employer’s immigration petition began to be processed, your “priority date.” Your priority date is either the date your employer properly files your immigration petition, or for applicants who qualify for the EB-2 or EB-3 visa, it may be the date the USCIS accepts for processing your employer’s labor certification. The National Visa Center (NVC) assigns your priority date once it receives from the USCIS your employer’s immigration petition.You can usually find your priority date on Form I-797, Notice of Action. The Form I-797 will let you know that the USCIS has received your petition, and the USCIS also uses Form I-797 to schedule any appointments and ask for information.
Cut-Off Date
When there are no more visa numbers available for a country in a given year because all the visas allocated by the INA for the country have already been given, the USCIS stops processing applications from that country and a waiting list develops. At the top of the list is the “cut-off date,” which is the priority date of the first person who qualifies for a visa number but can’t get one. As long as there is a cut-off date, the USCIS only gives visa numbers to people who have priority dates earlier than the cut-off.The U.S. Department of State’s (DOS) monthly Visa Bulletin designates which countries presently have a waiting list, as well as current cut-off dates. For example, the January 2014 Visa Bulletin indicated the USCIS was only giving visa numbers to EB-2 applicants from India who had priority dates before November 15, 2004, and to applicants born in Mainland China who had priority dates before December 8, 2008. For most countries, there are enough EB-2 visa numbers for all qualified applicants. But there is a line several years long for applicants from India and China (not counting Taiwan).
EB-2 professionals who are in line for a visa number sometimes discover that the cut-off date in a Visa Bulletin is later than the date in the previous bulletin. When this happens, everyone on the waiting list moves closer toward getting a visa number. But sometimes, the cut-off date moves backward because the NVC received so many qualified applications. When this happens, everyone on the waiting list will probably have to wait a bit longer for a number than the previous bulletin predicted. The USCIS calls this backward movement “retrogression.”
You can call the DOS at 1-202-485-7699 to see when visa numbers are available. You’ll hear a recorded message that the DOS updates around the tenth day of each month.
Conclusion
Once you receive a visa number, you can then submit your visa application and prepare for your visa interview and appointments. Visa numbers are readily available for family-based applicants. According to the United States Citizenship and Immigration Services, the time it takes to get an employment-based visa can’t be predicted with any accuracy. It can be anywhere between months and years.Understanding the INA process for allocating employment-based visas is a starting point for estimating how long it might take for you.
Resources
Visa Availability & Priority Dates
http://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-datesU.S. Department of State The Immigrant Visa Process
http://travel.state.gov/content/visas/english/immigrate/immigrant-process/petition/file.htmlE2 Customer Guide: I Am an Employer: How Do I Sponsor an Employee for U.S. Permanent Resident Status?
http://www.uscis.gov/sites/default/files/USCIS/Resources/E2en.pdfEmployment-Based Immigration: Second Preference EB-2
http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Electronic%20Reading%20Room/Customer%20Service%20Reference%20Guide/Immigrant_Empl.pdf