Understanding Visa Bulletin Cut-Off Date Determination

Role of DOS

The State Department (DOS) is responsible for the allocation of numerically limited immigrant visa numbers under the authority granted by section 203 of the Immigration and Nationality Act (INA). These visa numbers are allocated based on congressionally mandated preferences that assign an overall total, limits for each category and per country limits within each category.

The Immigrant Visa Control and Reporting Division’s main responsibility is the administration of the complex series of annual numerical limitations on immigrant visas, subdivided by preference category and country, which are set by the INA. Where demand exists, DOS goal is to have the issuance level come as close as possible to 100% of the numbers available each year without exceeding the limits that Congress has established. DOS also want to maintain a steady flow of applications throughout the year to ensure appropriate use of government resources and to provide good customer service to applicants. Over the past years, DOS have a proven record of using over 95 percent of the annual worldwide numerical limit.

Role of USCIS
The Department works closely with United States Citizenship and Immigration Service (USCIS) on data exchange to allow for maximum use of numbers under the annual limits, and in a stable, predictable manner. This is extremely important in the Employment based categories, where USCIS currently uses approximately 90 percent of all available visa numbers. Section 203(g) of the INA directs the Secretary of State to make reasonable estimates of anticipated number use in order to maximize number use under annual limits. When making such estimates it is necessary to take into consideration a number of variables based on the best information which is available when those estimates are being made. Should there be a change which could not be anticipated it can have an impact on number use. This makes the determination of the monthly cut-off date particularly difficult at the end of the fiscal year since there is little if any time to make any necessary adjustments. While DOS always strive to reach 100% goal of the numbers allocated, increasing percentage above 95 percent is difficult given that DOS is statutorily barred from exceeding the annual limits.


DOS working with USCIS, Consulates and Embassies
On any given day, immigrant visas are issued at about 130 embassies and consulates overseas. Adjustments of status (which use the same numbers) are granted at about 90 - 100 domestic USCIS offices. The State Department tracks visa number usage and requests from consular sections around the world and USCIS. On a monthly basis the Visa Office determines the number of visas which can be allocated in each visa category and to each country on a worldwide basis. The process developed for managing the numbers throughout the year requires that numbers are made available by adjusting the cutoff date for each category and each country on a monthly basis. Cutoff dates for all countries except China, India, Mexico and the Philippines are currently the same every month in every category. Because demand for numbers exceeds annual per-country numerical limits for these four countries, they have their own cutoff dates in some categories.

The monthly visa bulletin published by the Department and available on website at www.Travel.State.Gov explains the allocation of visa numbers by dates, the laws and the per country and per category limits.

As stated previously, DOS goal is to come as close as possible to the annual limit without exceeding it. The Immigrant Visa Control and Reporting Division maintains a database containing workload statistics for immigrant visas issued at Foreign Service posts worldwide, and adjustment of status cases at USCIS. DOS authorize numbers for USCIS applications as USCIS request them, usually on a daily basis.

DOS in past has received several inquiries about the allocation of Employment-Based Second Preference visa numbers to India and China. DOS want to make clear that India is not receiving all of the extra numbers. They are also available to China where the applicant’s priority date was earlier than the posted cut-off date and are also available to applicants in any other country with a current priority date and for which the interview is completed and all required clearances received. These numbers are being made available when current indications are that demand from “all other countries” will not be sufficient to utilize all available Employment First and Second preference numbers. Such numbers will be made available, as visa numbers are always provided, in priority date order (the date petition to accord immigrant status was filed with USCIS). India does have a larger number of older petitions pending and therefore is likely to receive a larger number of these visa numbers than China. The Department’s policy of making the extra numbers available in priority date order is mandated by Section 203(e) of the INA. This allocation of numbers based on priority date means that China and India Second preference applicants will be subject to exactly the same cut-off date.

VISA NUMBER Availability and Cut-Off Date Determination for Visa Bulletin

The Department of State is responsible for administering the provisions of the Immigration and Nationality Act (INA) relating to the numerical limitations on immigrant visa issuances. It is a process that has evolved through the years and will continue to do so as DOS use the best technologies to improve communication with posts, applicants and colleagues at USCIS.

At the beginning of each month, the Visa Office (VO) receives a report from each consular post listing totals of documentarily qualified immigrant visa applicants in categories subject to numerical limitation. Cases are grouped in three different categories: 1) foreign state chargeability, 2) preference and 3) priority date.

Foreign state chargeability for visa purposes refers to the fact that an immigrant is chargeable to the numerical limitation for the foreign state or dependent area in which the immigrant's place of birth is located. Exceptions are provided for a child (unmarried and under 21 years of age) or spouse accompanying or following to join a principal to prevent the separation of family members or in a foreign state of which neither parent was a native or resident. Alternate chargeability is desirable when the visa cut-off date for the foreign state of a parent or spouse is more advantageous than that of the applicant's foreign state.

Preference is the visa category that can be assigned as established by the Immigration and Nationality Act based on relationships to U.S. citizens or legal permanent residents. Family based immigration falls under two basic categories: unlimited and limited. Preferences established by law for the limited category are:

Family First Preference (F1): Unmarried sons and daughters of U.S. citizens and their minor children, if any.

Family Second Preference (F2): Spouses, minor children and unmarried sons and daughters of lawful permanent residents.

Family Third Preference (F3): Married sons and daughters of U.S. citizens and their spouses and minor children.

Family Fourth Preference (F4): Brothers and sisters of United States citizens and their spouses and minor children provided the U.S. citizen is at least 21 years of age.

Employment-based immigration also includes preferences; all of them are subject to a limitation.

The Priority Date is normally the date on which the petition to accord the applicant immigrant status was filed, normally with U.S. Citizenship and immigration Service.

Visa Bulletin Cut-Off Date Determination
The Department of State Visa Office subdivides the annual preference and foreign state limitations specified by the INA into monthly allotments. The totals of documentarily qualified applicants which have been reported to VO are compared each month with the numbers available for the next regular allotment. The determination of how many numbers are available requires consideration of several of variables, including: past number use; estimates of future number use and return rates; and estimates of Citizenship and Immigration Service demand based on cut-off date movements. Once this is done, the cut-off dates are established and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first.

If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current". For example: If the monthly allocation target is 10,000 and DOS only have 5,000 applicants the category can be "Current”.

Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 10,000 and DOS have 25,000 applicants, then the goal would be to establish a cut-off date so that only 10,000 numbers would be allocated. In this case, the cut-off in the ideal world would be the priority date of the 10,001st applicant.

Only persons with a priority date earlier than a cut-off date are entitled to allotment of a visa number. Possible cut-off dates are the 1st, 8th, 15th, and 22nd of any given month, since the Visa Office groups demand for numbers under these dates. (Priority dates of the first through seventh of a month are grouped under the 1st, the eighth through the fourteenth under the 8th, etc.)

The Visa Office attempts to establish the cut-off dates for the following month on or about the 8th of each month. The dates are immediately transmitted to consular posts abroad and the U.S. Citizenship and Immigration Services (USCIS), and also published in the Visa Bulletin and online at the Bureau of Consular Affairs Web site (www.travel.state.gov).

Visa allotments for use during that month are transmitted to consular posts. USCIS requests visa allotments for adjustment of status cases only when all other case processing has been completed.

CLARIFICATION OF SOME FREQUENTLY MISUNDERSTOOD POINTS

Applicants entitled to immigrant status become “documentarily qualified” to apply for an immigrant visa (meaning they have all their documents necessary for a visa interview and, if approved, for issuance) at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.

If an applicant is reported documentarily qualified but allocation of a visa number is not possible because of a visa availability cut-off date, the demand is recorded at the Visa Office and an allocation is made as soon as the applicable cut-off date advances beyond the applicant's priority date. There is no need for such applicant to be reported a second time.

Visa numbers are always allotted for all documentarily qualified applicants with a priority date before the relevant cut-off date, as long as the case had been reported to the Visa Office in time to be included in the monthly calculation of visa availability. Failure of visa number receipt by the overseas processing office could mean that the request was not dispatched in time to reach the Visa Office for the monthly allocation cycle, or that information on the request was incomplete or inaccurate (e.g., incorrect priority date).

Allocations to Foreign Service posts outside the regular monthly cycle are possible in emergency or exceptional cases, but only at the request of the office processing the case. Note that should retrogression of a cut-off date be announced, the Visa Office can honor extraordinary requests for additional numbers only if the applicant's priority date is earlier than the retrogressed cut-off date.

Not all numbers allocated are actually used for visa issuance; some are returned to VO and are reincorporated into the pool of numbers available for later allocation during the fiscal year. The rate of return of unused numbers may fluctuate from month to month, just as demand may fluctuate. Lower returns mean fewer numbers available for subsequent reallocation.

Fluctuations can cause cut-off date movement to slow, stop, or even retrogress. Retrogression is particularly possible near the end of the fiscal year as visa issuance approaches the annual limitations.

Per-country limit: The annual per-country limitation of 7% is a cap, which Visa issuances to any single country may not exceed. Applicants compete for visas primarily on a worldwide basis. The country limitation serves to avoid 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. A portion of the numbers provided to the Family Second preference category is exempt from this per-country cap.

The American Competitiveness in the Twenty-First Century Act (AC21) removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.

Applicability of Section 202(e): When visa demand by documentarily qualified applicants from a particular country exceeds the amount of numbers available under the annual numerical limitation, that country is considered to be oversubscribed. Oversubscription may require the establishment of a cut-off date which is earlier than that which applies to a particular visa category on a worldwide basis. The prorating of numbers for an oversubscribed country follows the same percentages specified for the division of the worldwide annual limitation among the preferences. (Note that visa availability cut-off dates for oversubscribed areas may not be later than worldwide cut-off dates, if any, for the respective preferences.)

Can Wife use Husband’s Priority Date or vice-versa to Interfile I-485?

While talking to my friends this has been a very common question, if a derivative (dependent) beneficiary can use primary beneficiary’s priority date to file I-485 under employment category.

What is Interfiling?
Interfiling is a procedure that allows an applicant to change the I-140 petition upon which the I-485 is based. Essentially, the I-485 is filed based on an I-140 petition, but the applicant wants to proceed through a new or different I-140 petition. Interfiling permits the individual to "switch" the I-140 upon which the I-485 is based. This is true for the cases where an individual has just ported their case from one preference category to other (e.g. EB3-EB2) and already has I-485 pending with USCIS based on earlier priority.

Can Wife use Husband’s Priority Date or vice-versa to Interfile I-485?
In a scenario where both husband and wife have independent I-140 petitions filed by their respective employers, and where there is a set of I-485s (one for the primary spouse and one for the derivative spouse) filed with regard to one of the I-140s, there is no option of interfiling based upon an I-140 approval for the derivative spouse, even if his/her preference category is better and make them eligible to file I-485 based on primary’s priority date. This is because the roles of derivative spouse and primary applicant would have to be reversed in this situation. There is no mechanism when interfiling to shift applications from derivative to primary and from primary to derivative, therefore making them improperly filed with the other I-140 petition. You cannot mix and match your priority date to take advantage of both worlds.

Of course, if the same person has an EB3 and now an EB2 I-140 petition, the USCIS will allow the EB2 I-140 approval to replace the previously-filed EB3 I-140 petition approval.

How to know if old I-140 has been revoked by previous employer?

If an individual filing a green card under employment-based category has changed job and now planning to port priority date from previous filed Labor certification, he will at least need an approved I-140 from previous employer to recapture priority dates.

As per Yates Memo, in the context of employment-based immigration, visa petitions filed under the EB-1, EB-2, or EB-3 categories are entitled to the earliest priority date where a subsequent I-140 immigrant visa petition in any of these categories is submitted and approved, unless the prior petition was revoked due to fraud. So, unless case is revoked due to fraud, you should be able to recapture old priority date.

But there are many cases with USCIS, where old priority date is not recaptured on new filings even if previous employer revokes old approved I-140 due to retaliation or due to company's policy to annually revoke cases for former employees. In these circumstances, employee or new employer should call National Service Center and talk to representative and remind them about Yates Memo, which clearly says earliest priority date should be recaptured unless petition was revoked due to fraud or misrepresentation. If you will talk to them nicely and puftorth your case by referencing Yates Memo, you might be able to convince them to recapture old PD. See excerpt from Yates Memo below.

From: William R. Yates

Date: 09/23/05

Re: Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, Duplicate Labor Certification Requests and Requests for Extension of H-1B Status Beyond the 6<sup>th Year.

Revisions to Adjudicator’s Field Manual (AFM) Chapters 22.2(b)(2), 22.2(b)(3)(B), 22.2(b)(3)(F), (22.2(b)(5) and 33.3(g)(8) (AFM Update AD 05-15)
.....</sup>

^{In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification}

How to know if old I-140 has been revoked by previous employer?

There is no easy way to know if previous employer has revoked your old approved I-140. The best way to know this is to call your previous employer or attorney and see if your previously approved I-140 is still good. If that is not an option, other way to predict this is to check if there is any 'Soft LUD' on your previously approved I-140. If there is no update on your case status after final action (i.e. approval notice sent date), then you may be in good shape and your I-140 is still good. Please see '. Other than this there is no better way to know status on previously filed petition.

Priority Date - How to recapture from previously filed petition ?

Generally speaking, the filing date of the visa petition determines the priority date of the alien beneficiary, and his or her place on the waiting list for an immigrant visa.

Employment Based

Immigrant workers being sponsored for labor certifications or PERM are an exception to above rule; the labor certification filing date with the Department of Labor controls as the priority date.

In the context of employment-based immigration, visa petitions filed under the EB-1, EB-2, or EB-3 categories are entitled to the earliest priority date where a subsequent immigrant visa petition (usually I-140) in any of these categories is submitted and approved, unless the prior petition was revoked due to fraud. However, these priority dates are not transferable to the EB-4 or EB-5 categories, or family-sponsored visa petitions.

Once immigrant petition for alien has been approved, he or she can move to new employment. In order to recapture previous priority date, alien has to start their green card process again with his employer. This involves submission of new PERM for new job to DOL. Once PERM is approved, request to capture previous priority date can be sent to USCIS when filing for new I-140 or during filing I-485. Please note, you will need an approved I-140 to recapture priority date. Old PERM approval is not sufficient. Proof of previously approved I-140 could be send to USCIS in form of copy of approval notice, copy of receipt notice or image capture of approval of case on USCIS website.


Family Based

Recapturing an earlier priority date for a subsequent family-based visa petition is more complicated. Here’s a brief overview of the U.S. family-based immigration system: immediate relative (spouse or unmarried child under 21 years old of U.S. citizen); 1st preference (unmarried child over 21 years old of U.S. citizen); 2nd preference (F2A – spouse and unmarried child under 21 years old of permanent resident, and F2B – unmarried child over 21 years old of permanent resident); 3rd preference (married child of U.S. citizen); and 4th preference (brother or sister of U.S. citizen). It is important to note that there is no category for married children of permanent residents.

Regulations implementing U.S. immigration law provide specifically when priority dates can be recaptured for a family petition. Generally speaking, a beneficiary can recapture an earlier priority date if the petitioner and the beneficiary are the same, the petitioner is filing in the same preference category, and the prior I-130 visa petition was not terminated or revoked. For example, if an unmarried child of a U.S. citizen over the age of 21 years old (1st preference category) marries while the petition is pending, then the beneficiary is automatically converted to the 3rd preference category but they will keep the original priority date. However, if an unmarried child of a permanent resident (2nd preference) marries while the petition is pending, then the petition is automatically revoked as a matter of law because no category exists for permanent residents to petition married children. Any subsequent petition that the permanent resident parent files on that child’s behalf (such as a 3rd preference visa when the parent becomes a U.S. citizen) will entail a new filing (priority) date.

Another complicated situation where priority dates can be recaptured involves the children of unmarried sons or daughters who are the principal beneficiaries of their parents’ petitions filed in the 2nd preference category. If these children (derivative beneficiaries) turn 21 years old, they lose their derivative status and move from the F2A category to F2B. Moreover, the children will require a new immigrant visa petition filed on their behalf. Fortunately, these derivative beneficiaries who “aged-out” will be able to retain the original priority date of their initial petition.

Priority dates directly determine when an individual can immigrate to the United States or adjust their status to permanent residency. As you can see, attempting to recapture an earlier priority date to ensure more timely immigration can be complex. Individuals seeking assistance with recapturing a priority date from a prior petition should consult with knowledgeable and experienced immigration attorneys.

July Visa Bulletin 2009 : Visa Numbers Retrogress for EB2 China Mainland Category

July 2009 visa bulletin is out. As predicted, the cutoff date for China in the EB2 category has retrogressed to January 1, 2000. The June Visa Bulletin will become effective as of July 1st. Thus, the June Visa Bulletin, with an EB2 China cutoff date of February 15, 2005 remains effective through June 30, 2009. So applicants with priority date before February 15, 2005 should rush their applications as soon as possible.


Last month DOL retrogressed the EB2 numbers for category India. DOL claims that high level of demand in the EB2 category, and the need to keep within the annual limits is set by law. The DOS also stated that it is currently not possible to estimate whether this retrogression will continue for the rest of the fiscal year. Cut off date in EB-2 category is current for ROW, where as it is January 1, 2000 for natives from India and China Mainland.

Visa numbers for EB3 is Unavailable for everyone in this category. It is predicted that this may be unchanged for entire fiscal year. Wait for green card could be indefinite for applicants from India and China category. Soon this long waited "American Dream" will become nothing but "American Nightmare".

June Visa Bulletin 2009 : Visa Numbers Retrogress for EB2 India Category

June 2009 visa bulletin is out. The cutoff date for India in the EB2 category has retrogressed to January 1, 2000. The June Visa Bulletin will become effective as of June 1st. Thus, the May Visa Bulletin, with an EB2 India cutoff date of February 15, 2004 remains effective through May 31, 2009. So applicants with priority date before February 15, 2004 should rush their applications as soon as possible.

DOL claims that high level of demand in the EB2 India category, and the need to keep within the annual limits is set by law. The DOS also stated that it is currently not possible to estimate whether this retrogression will continue for the rest of the fiscal year. Cut off date in EB-2 category is current for ROW, where as it is 15 Feb 05 for natives from China Mainland. Looking at past trend, we can see retrogression in dates for natives from China in coming visa bulletins.

It should also be noted that last month DOL announced that visa numbers in EB3 category will be unavailable for rest of the fiscal year. If dates will keep on retrogressing, wait for green card could be indefinite for applicants from India and China category. I wonder, if we do not see any immigration reform in Senate regarding employment based category , soon we will see declining number of immigrants opting US as an option to settle and work. Eventually, other countries would benefit from this by opening doors to skilled workers.