Immigration Preferences and Waiting Lists

Most immigration cases seem to take a long time to finish...sometimes several years. Others are finished much faster. For example, sponsorship by a US citizen usually takes much less time than sponsorship by a person with a green card.

It may take a long time to complete a case because of a waiting list. There is a worldwide limit to the number of immigrant visas (green cards) given out each year. The worldwide total U.S. visas for family sponsored cases is about 500,000 a year and for employment based cases it is about 140,000. There is also a limit by a person's country of birth and by the way the person is sponsored. The annual limit of green card visas for any one country is 7% of the worldwide total. For dependent areas, the limit is 2% of the worldwide total.

If more people from a country apply than there are available visas, there will be a shortage of visas and the US State Department will set up a waiting list of people. The list is kept in Priority Date order with the earliest Priority Date at the top of the list. The Priority Date is usually the date the immigration petition was received by the Immigration Service or the date the application for labor certification was received by the local employment service.

In addition to a limit on the number of visas for each country, there is also a limit according to the way the person is sponsored. There are two major categories of immigrant visa groups: family and employment. The relative or employer who signs the papers for a green card is sometimes called the sponsor.

The Family Preferences (or categories) are: 1st Preference: unmarried sons and daughters of US citizens. Family 2nd Preference, Part A: spouses and minor, unmarried children of permanent residents. The Family 2nd Preference, Part B is for children of permanent residents who are over 21 years old.

The Family 3rd Preference is for married sons and daughters of US citizens. The Family 4th Preference is for brothers and sisters of US citizens. The 4th has a very long wait because there are many brothers and sisters waiting for immigrant visas.

The Employment Preferences are more complicated with eight preferences some with sub-sections. Sponsorship for an job by an employer (or by the applicant worker in some cases), will put the person in one of the employment categories depending upon the job requirements and the employee's qualifications.

The biggest difference in the Employment Preferences is with jobs that require less than two years experience and those requiring two years or more experience. As an example, if a job requires at least two years experience, the person may go into Employment 3rd Preference and the case may take one to two years to complete, as an estimate. If the job requires less than two years experience, the applicant worker goes into a sub-section of the Employment 3rd called "Other Workers". A case in this category can be expected to take 10 years or more to complete because of the long waiting list for Other Workers.

The wait is long in some of these categories because there are fewer visas available in certain categories and because there are a large numbers of people on the waiting lists for some preferences and for some countries. For example, there are over one million people on the waiting lists for all the countries of the world for the brother/sister preference. That is why it takes many years for brothers and sisters to emigrate to the U.S.

You cannot change a priority date to make it sooner except in a few special cases. If a person is being sponsored by his Permanent Resident wife for example, he will go into the Family 2nd Preference, Part A. But as soon as his wife becomes a US Citizen, he will jump ahead of everyone on that waiting list and be processed when his papers are ready since he automatically goes into the group known as Immediate Relatives of US citizens.

Husbands, wives, minor unmarried children, step-children, and parents of US citizens do not go on any waiting list. There is no limit on the number of green cards for these kinds of cases. There is no quota and no wait for these "Immediate Relative" cases. Remember though, that brothers and sisters of US citizens are not Immediate Relatives but are in Family 4th with very long waiting lists.

A strange rule is that children in the 2nd Family Preference are automatically included when listed in a parent's papers while children sponsored as Immediate Relatives by a US citizen are not included in a parent's papers but must have separate papers filed by the US citizen parent.

Once a priority date (date on the waiting list) is assigned it usually stays with the person until the case is finished. The priority date in an employment case will be the date when the papers are first sent to the Labor Department. Be careful because when the Labor Department asks for more information it sets a 45 day time limit for the answer. If the response is late, a new priority date will be assigned. It will be the date that the late answer was received. A case could lose a year or more by missing the reply deadline by one day.

If the US Consul calls a person for his green card visa interview and the person does not go, the Consul can write to the person and give the person one year to contact the Consul. If the application is not made within the one year, the priority date and the petition will be canceled and the case will have to start over again.

Priority dates and preference categories are somewhat complicated. This is only a general review here. And of course, a person cannot get on a waiting list until papers are properly filed and approved.

Some people are confused by Section 245i of the Immigration Act. This section applies to people who are in the US and who are out of status (stayed too long, worked without permission, etc.); or who entered the US illegally. These people not usually permittted to apply for a green card in the US (some exceptions for the spouse of a US citizen) but if a person meets the requirements of Section 245i (go to Changes to US Immigration Laws for more information) the person can apply for the green card in the US by paying a larger filing fee. Important: to use Section 245i the applicant must have an approved immigrant petition from an employer or a qualified family member. Section 245i is NOT an amnesty, it does not create a new way to get a green card. It just allows more people to apply in the US if they have an approved and current immigrant petition.


Look at our Easy-To-Read Visa Bulletin which gives the waiting list dates for each category.
Send e-mail to rmadison@lawcom.com

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© Richard Madison 2001

Last edit: 06:38 14 Jan 01

Law office of Richard Madison