Understanding the Visa Bulletin & Why We Can’t Predict When You’ll Get a Green Card

The most common question posed to any immigration attorney is “can you help me get a green card?” The second most common question is “how long will it take to get my green card?” Part of the reason why it is so difficult to answer this question, or even estimate the length of time involved, is because of the Visa Bulletin.

What is the Visa Bulletin?

The Visa Bulletin is a monthly publication by the U.S. Department of State (DOS) that provides detailed information on the availability of immigrant visas (i.e., green cards). The Visa Bulletin plays a crucial role in the administration of the United States’ immigrant quota system, indicating when visas are available for issuance to prospective immigrants based on their priority date, preference category, and country of chargeability. Because most green card categories are oversubscribed, meaning there are more applicants seeking green cards than there are available green cards, the Visa Bulletin is a “wait list” for those in line.

Understanding the Quotas

By law, the U.S. government can only give out a certain number of immigrant visas (green cards) each year. For example, Congress has authorized only 140,000 immigrant visa employment-based applicants per fiscal year, and 226,000 family-based applicants per year (excluding immediate relative spouses, parents and children of U.S. citizens). Additionally, the law prescribes that no more than 7% of total immigrant visas issued each year go to individuals of a particular country (the per country quota), meaning that only 25,620 preference-based green cards can be issued to individuals from any given country per year.

Furthermore, both the family-based and employment-based quotas are further divided among preference categories based on Congressionally-mandated rules that are nearly impossible to comprehend.

Family-Based Preferences

First (F1): Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

F2A: Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

F2B: Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third (F3): Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by the first and second preferences.

Fourth (F4): Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by the first three preferences.

Employment-Based Preferences

First (EB-1): Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second (EB-2):  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third (EB-3):  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which go to “Other Workers”.

Fourth (EB-4):  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth (EB-5):  Employment Creation:  7.1% of the worldwide level, of which 32% are reserved as follows: 20% reserved for qualified immigrants who invest in a rural area; 10% reserved for qualified immigrants who invest in a high unemployment area; and 2% reserved for qualified immigrants who invest in infrastructure projects. The remaining 68% are unreserved and are allotted for all other qualified immigrants.

What is a Priority Date and Why Does it Matter?

A priority date is the date that marks the individual’s place in line for the immigrant visa (green card), determining when they will be eligible to apply for an immigrant visa at the consulate abroad or file an adjustment of status application in the U.S. The priority date is established through the proper filing of either a PERM labor certification application (ETA 9089), an I-140 immigrant petition by an employer, or an I-130 immigrant petition by a family member. If the beneficiary’s priority date is on or before the date listed in the Visa Bulletin, they are eligible to file for the green card. Conversely, if the priority date is not yet available, the individual must remain in line awaiting months or even years until it becomes available.

How to Read the Visa Bulletin

In each month’s Visa Bulletin, the DOS provides two sets of cutoff dates, “Dates for Filing” and “Final Action.”

“Dates for Filing” Allows an Individual to Start Filing

The Visa Bulletin allows applicants to determine when they can start the last stage of the green card process by either filing the I-485 adjustment of status application with USCIS (if they are in the US and eligible to adjust status) or by pursuing consular processing through the U.S. Consulate abroad, typically in their home country. Note that the filing of the application in both scenarios may still take months or even years, but filing at this early stage allows the agency to process and review the application in advance. Having said that, it is important to note that individuals eligible to file an I-485 adjustment of status with USCIS cannot solely rely on the Visa Bulletin to file their applications and must ALSO verify that the USCIS will accept those applications based on the “Dates for Filing” chart.  USCIS announces whether it will accept I-485 adjustment of status applications based on “Dates for Filing” each month through its own Adjustment of Status Filing Charts from the Visa Bulletin, shortly after the DOS releases its Visa Bulletin.

“Final Action” Allows USCIS or DOS to Approve the Green Card

The Visa Bulletin also allows applicants to determine when they can expect a decision on their pending I-485 adjustment of status application or their immigrant visa based on when their priority date is available under the “Final Action” chart.  When a pending application’s priority date is earlier than the published cutoff date under “Final Action”, the respective agency is finally able to adjudicate and approve the application, assuming it is approvable. In other words, the agency is unable to legally approve the green card until the priority date is available under “Final Action” for the respective country and preference category.

Why Is It So Hard to Predict?

It is actually impossible to predict when an individual’s priority date will become available and when they will ultimately be able to file for or get their green card. There are many reasons for this, including the following:

• Annual limits: As already explained, Congress sets a quota on how many green cards can be issued each year in both the employment-based and family-based preference categories, but does not fully know how many individuals are preparing to file applications in those categories. Once these limits are reached, no more visas can be issued until the next fiscal year, creating backlogs for applicants.
• Per country limits: Individuals from oversubscribed countries, such as India, China, Mexico and Philippines (and sometimes others) are subject to per country quotas that further restrict when a number becomes available. Only 25,620 preference-based green cards can be issued to individuals from any given country per year. Those preparing to file now must get in line behind all of the other individuals from their country who have already filed ahead of them.
• Visa retrogression: Sometimes, a priority date that is current one month may not be current the next month, or the cut-off date may move backward, a phenomenon known as visa retrogression. This occurs when the demand for visas in a category exceeds the supply, often due to the annual limit being reached or the DOS anticipating that it will soon be reached. This often happens in the latter months of the fiscal year but can technically happen at any time and is a rather common occurrence. Put simply, the dates on the Visa Bulletin report may move backwards, forwards, or stop completely, depending on demand in that category.
• Fluctuating demand: The number of applicants for immigrant visas can vary widely from year to year and month to month, from country to country, and from preference category to preference category, affecting the movement of priority dates. An increase in applications can slow the progression of priority dates, while a decrease can allow them to move forward more rapidly. For example, if the government issues a new policy making it easier to qualify for a type of petition, the demand for that category will increase, thus decreasing the available supply and causing a slow down or retrogression.
• Changes in the applicant’s circumstances: Changes in the applicants’ personal circumstances, such as a petitioner naturalizing or a beneficiary marrying, or a child turning 21, can change the preference category of the visa for which they are applying, affecting their wait time.
• Inadmissibility of an applicant: Every applicant must establish that they are not “inadmissible” to the U.S. in order to get a green card approved. A person may be found inadmissible, for example, based on prior criminal convictions, deportations, unlawful presence in the U.S., health concerns, fraud or misrepresentation, among other reasons. In the event that an applicant is found to be inadmissible, and does not qualify for a waiver, their green card may be denied and they will not utilize the visa number reserved for them, meaning that the number returns to the quota for another applicant to use.
• Administrative processing and delays: The time it takes for the USCIS and DOS to process applications can also impact when a priority date becomes current. Delays in processing can lead to unpredictability in the movement of priority dates.
• Policy changes: Changes in immigration policy or procedures can also impact visa availability and priority date movement. For example, changes in how visas are allocated or processed can either speed up or slow down the rate at which priority dates become current.
• Derivative dependents: A spouse or child of a principal applicant who was acquired before the principal’s admission as a permanent resident is entitled to the same priority date as the principal. This means that dependents can benefit from the principal applicant’s priority date, potentially allowing for earlier visa availability and impacting the demand on the category sought.
• Retention of priority dates from earlier petitions: In certain situations, an individual is able to retain or use a priority date from an earlier I-140 or I-130 petition. The use of other priority dates makes it difficult for the agency to determine how many individuals are in queue in any particular category.

Given these variables, amongst others not listed, it is difficult to accurately predict with any level of certainty when a priority date will become current, and when a person will ultimately get their green card.

If you have any additional questions, do not hesitate to contact our office at (312) 427-6163 or schedule a consultation online.