05/20/12
Unraveling the Employment Based Immigration Quota System
The following is a discussion about the Employment-Based Immigration Quota system, including definitions and significance of the Quota Backlog and Cut-off Date. It also discusses leading predictions/theories and the benefits of filing under EB-1 or EB-2.
A. The Immigration Quota System
The U.S. accepts immigrant visa petitions filed by people from countries worldwide based upon an annual quota system. Each month, the U.S. State Department (DOS) calculates how many immigrant visa petitions were filed for nationals from every country worldwide during the previous month.
B. The Quota Backlog System
Sometimes the number of immigrant visas which were filed the previous month for people from a particular country exceeds the number of immigrant visas available under the quota system. The quota backlog system permits people to continue filing immigrant visa petitions beyond the quota cut-off and preserves their place in line while they wait for additional immigrant visas to become available under the quota system, but does not permit people to complete their immigration case (by filing Adjustment of Status or Consular Processing) until a quota number is actually available. Each person's place in line is determined by the date the Labor Certification or Immigrant Visa Petition was filed, which ever is earliest. This date is called the Priority Date.
C. The Quota Cut-off Date
The cut-off date controls how many people waiting in line may apply for Adjustment of Status. Specifically, every 30 days, DOS calculates how many immigrant visa petitions were filed during the previous month. Each succeeding month DOS adjusts the cut-off date depending upon how many visa numbers remain available (if any) based upon the previous month's demand (or lack of demand). The cut-off date is published monthly in the State Department's Visa Bulletin . If immigrant visa numbers are still available, DOS will advance the cut-off date to permit more people waiting in line to file for Adjustment of Status. Sometimes DOS makes a mistake by moving the cut-off date too far forward. When that happens DOS must move the cut-off date backwards to stop the filing and processing of Adjustment of Status applications until more quota numbers become available.
Because no one knows how many immigrant visa petitions will be filed next month, the quota cut-off date has historically progressed and regressed (gone backwards) unpredictably.
D. Quota Cut-off Date: Application to Your Case and Predictions
For purposes of illustration, in August 2010, the EB-2 quota cut-off for people born in China or India is March 1, 2006. In other words, in August 2010 DOS determined that there were only enough visa numbers for people who filed their Labor Certification or employment-based Immigrant Petition on or before March 1, 2006. People born in China or India who filed their Labor Certification or employment-based Immigrant Petition at a later date must continue to wait in line. People from other countries may be subject to a different quota backlog, or none at all.
E. How fast will the cut-off date progress?
Since January 2009, the Quota cut-off date has progressed every few months farily uniformly. Click here if you would like to plot the trend over a 10-year timeframe
F. Benefits of Filing Under EB-1 or EB-2 Generally speaking EB-1 will have a shorter backlog (or no backlog) in comparison with EB-2. In turn, EB-2 will have a shorter backlog (or no backlog) in comparison with EB-3. It is very important to discuss your immigration options with an attorney to discover if it may be possible to file a second immigrant petition at a higher level (either EB-1 or EB-2).