John Valdez’s Legal Blog

Few announcements garner attention as regularly as the monthly release of the Department of State’s Visa Bulletin.  Thousands of foreign nationals anxiously look forward to its publication with longing eyes that sometimes find joyful news; other times, news leading to continuing dispair.  But just what is this all important bulletin? 

To understand the Visa Bulletin, one must have an idea of our country’s limits on immigrant visas.  Generally, by statute immigrant visas are limited under annual caps by category and by country of origin. There are two categories, the family category and the employment category. 

The family category is capped at a worldwide-level at 226,000.  The cap means that the U.S. government may not approve more than 226,000 immigrant visas in any given year under the family category.  This cap is divided into categories ranging from very close relatives, such as the unmarried, adult son of a U.S. citizen (which falls into the first preference category) to more distant relatives, such as a brother of a U.S. citizen (which falls into the fourth preference category).  Visas for immediate relatives (parents, spouses, and children of U.S. citizens) are always available, but all other family categories are severely backlogged, because many more people apply for family-based visas than are available under the cap.  

There are also per country limits on the family category.  Each country is limited to no more than 7% of the total annual worldwide cap for family and employment visas, which means the U.S. government cannot grant more than 25,620 visas for people from any one country.  This cap proves especially painful for would-be green card holders from countries like Mexico and the Philippines, countries with large numbers of immigrant hopefuls. 

The Employment category works just like the family category, but with smaller numbers.  Employment-based immigrant visas are limited to approximately 140,000 on a worldwide-level and the 25,620 limitation per country for employment and family based visas.  As with the family cap, the limitation on employment-based visas is divided into preference categories (1st to 5th corresponding from high priorty to lower priority).   

The result of the family and employment categorical caps is long lines for many types of visas.  If there are fewer applicants than available visas in a category, the category is marked “Current,” and the foreign national in this category is eligible to immediately apply for permanent residence.  This is great news for the people involved.  Most people are not so lucky.

When there is a wait for an available immigrant visa, the priority date becomes all important.  The priority date is the date that an immigrant visa petition or labor certification application was filed – the beginning of the green card process. 

 The visa system works on a first in first out basis.  Thus, people with the earliest priority dates will become eligible for an immigrant visa soonest.  When a category lists a priority date, only people with priority dates earlier than the one stated in the Visa Bulletin are eligible for an immigrant visa.  For example, if the Bulletin lists the date 03-08-02 under a particular category,  the information means that only people with a priority date of March 8, 2002 or earlier are eligible for an immigrant visa under the particular category.  Sometimes a category is so far backed up, the category is marked unavailable, which means no one is eligible for an immigrant visa.

If the complexity of the Visa Bulletin seems a bit ridiculus to you, I assure you that you are not alone.  My clients regularly complain that they do not understand it.  What is clear is that it can cause pain.  For example, the wait for an immigrant visa in the family-based brother category for Mexico is currently 23 years!   

I my opinion, legislation is clearly needed to eliminate many of the backlogs in the immigrant visa categories, but I’ll discuss that subject in future blogs.  If you have questions about any legal subject, the Attorneys at Smith & Garg, PC are always available to answer your questions.