\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 20 Immigrants in General \ 20.1 Numerical Limitations and the Visa Bulletin.
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Numerical Limitations and the Visa Bulletin.
The admission of immigrants to the United States is regulated by section
of the Act (worldwide limitation), section 202 of the Act (per-country limitation) and section 203 of the Act (allocation of visas among various categories of immigrants). Responsibility for the complex process of numerical control of visas issued under numerically restricted categories is delegated to the Department of State. DOS publishes a monthly visa bulletin which provides information to the public regarding availability of visas for each nationality in each of the numerically limited classes.
Numerically restricted classes include:
family-sponsored (other than immediate relatives)
employment-based (including investors and some special immigrant classes)
diversity (aka lottery)
Non-numerically limited classes include:
special immigrants described in section 101(a)(27)(A) or (B)
legalization (section 245A) and special agricultural worker cases (section 210)
cancellation of removal cases (section 240A(a))
registry cases (section 249)
immediate relatives described in section 201(b)(2)(A)(i)
alien children born subsequent to the issuance of a visa to an immigrating parent (section 211(a)) or born during the temporary absence of an LPR parent (section 211(b)) (NOTE: Although these children do not count against the individual preference quotas contained in section 203 of the Act, they do count against both the worldwide level of immigration in section 201(c) and the per-state limitations in section 202((a)(2)].
refugees (section 207) and asylees (section 208)
Separate numerical limitations are set for refugee admissions and for asylee adjustments, but these are unrelated to the worldwide immigrant admissions.
The term “priority date” is relevant only to immigrant visa petitions seeking classification for numerically limited visa categories. In all other instances, there is no distinction between the filing date, which is used primarily to determine the chronology of case processing, and the priority date which is used by
and the Department of State for determining the chronological placement of a beneficiary seeking an immigrant visa or adjustment of status in a numerically limited classification. Establishment, maintenance and loss of priority dates is a relatively complex topic. In a majority of cases, the priority date is established when an immigrant visa petition is properly filed (including required initial evidence) with a
office. However, there are significant exceptions to this general rule. Among the circumstances which may effect a priority date are:
Issuance of an individual labor certification for an employment-based immigrant petition
Approval of a prior petition for the same beneficiary
Termination of a job offer (for employment-based cases) or a relationship (for family-based cases)
Rejection, withdrawal or denial of a visa petition.
Special rules governing priority dates for family sponsored immigrants are discussed in chapter 21. Special rules governing priority dates for employment based immigrants are discussed in chapter 22.
In addition to the general priority date rules and the special rules applicable to family sponsored or employment based cases, Congress and the Federal Courts have occasionally imposed “grandfather clauses” or class action decisions that can affect the assignment of a priority date. See paragraph (f) below for a description of these special rules.
The Board of Immigration Appeals has also interpreted the statutes and regulations affecting priority dates and filing dates. Some precedent decisions dealing with these issues are:
Matter of Ro
, 16 I&N Dec. 93 (BIA, 1977). A nonpreference priority date once established is retained by the alien even though the alien meets the provisions of section 212(a)(14) of the Act by some means.
Matter of Lasike
, 17 I&N Dec. 445 (BIA, 1980);
Matter of Huang
, 16 I&N Dec. 358 (BIA, 1977). A "renewed" application for adjustment of status will be treated as a new application if the present application is based on circumstances which have occurred since the denial.
Matter of Yodying
, 17 I&N Dec. 155 (BIA, 1979);
Matter of Garcia
, 16 I&N Dec. 653 (BIA, 1978). An application for adjustment of status (I-485) is "filed" on the date it was submitted simultaneously with a visa petition.
Matter of Carbajal
, 20 I&N Dec. 461 (BIA, 1992). When a previously filed visa petition (which was originally rejected by the Service) is resubmitted to the Service, stamped with the time and date, and accompanied by the appropriate fee, it is a new petition and a new filing date has been effected which, if the petition is approved, establishes the priority date for the beneficiary.
The Visa Bulletin
The Department of State is responsible for controlling and allocating visa numbers for all numerically limited visa classes. Every month the Department of State publishes a bulletin listing the availability of preference visa numbers (also called “quota numbers”) by preference category and country of birth. The bulletin is available on the Internet at:
The bulletin is also available on a recorded message at (202)663-1541. Other than as discussed in paragraphs (c) and (d), an alien cannot apply for adjustment of status under any preference visa classification if a number is not available for his or her country of birth and preference category. If the availability date for an alien’s particular country of birth and preference category is not either “C” (for current) or a date which has already passed, that alien cannot file an adjustment application.
The date listed in the bulletin is the first date for which a preference number is
available. The alien’s priority date must be
the date given in the Visa Bulletin. Any preference category adjustment application submitted when a visa number is not available must be rejected.
Some discussion has arisen relative to which publication of the Visa Bulletin issued by the State Department on a monthly basis should be considered to be the "current" bulletin. The Visa Bulletin summarizes visa availability and is issued approximately the 10th day of each month indicating visa information for the following month. For purposes of adjustment of status applications, you should refer to the Visa Bulletin that is in effect for the calendar month in which the I-485 is filed, regardless of the
printing and issuance of the following month's Visa Bulletin.
While visa availability is normally determined by the alien’s country of birth (in addition to the preference category), under certain circumstances, when a visa number is not available in the particular preference category for the alien’s country of birth he or she may utilize a preference number for a country other than his or her country of birth. Section 202(b) of the Act sets forth the rules under which an alien may be charged to a country other than the one of his or her birth. These alternate charg
eability rules are designed to ensure that children are not separated from parents, that spouses are not separated from each other, that aliens born in (but not now citizens of) the United States are not precluded from receiving preference visas, and that aliens born during the temporary visit of their parents to a country in which they have no residence are not adversely affected by “an accident of birth.”
While a child may be charged to his or her parent’s country of birth, the reciprocal is not true... a parent
be charged to his or her child’s country of birth.
Everyone who is responsible for determining whether an adjustment application is properly filed must understand the principles of alternate chargeability, recognize when an alien is entitled to alternate chargeability, and be able to act accordingly.
Some precedent decisions dealing with alternate chargeability:
Matter of Talbot-Phibbs
, 11 I&N Dec. 371 (BIA, 1965). An adopted alien is charged to the quota of the country of the adoptive parent.
Matter of N-
, 8 I&N Dec. 369 (R.C., 1959). A section 245 applicant for whom a preference visa is not available under his or her own quota is entitled to be charged against quota area of his or her resident alien spouse who previously adjusted.
Regressed Visa Number Cases.
(Revised 12/15/2010. AD11-02; Policy Memorandum PM-602-0015)
(1) General. Generally, the availability dates on the Visa Bulletin move forward, but they sometimes move backward, or "regress". If a visa number regresses after an alien has properly filed an application for adjustment of status, and the alien appears to be eligible for such adjustment, he or she is allowed to remain in the United States until a visa number again becomes available. The application is held in abeyance pending a visa number availability only if the application is otherwise approvable. While the case is awaiting availability of the regressed visa number, the alien is eligible for issuance of interim benefits such as an employment authorization document and andvance parole for the purposes of employment and travel outside the United States and return, respectively, at the discretion of the director having jurisdiction over the matter (see AFM Chapter 54). However, if the alien is ineligible for adjustment due to an issue not related to visa availability (e.g., inadmissibility under section 212(a) of the Act), the application should be denied accordingly. Therefore, the adjudication (including the interview) should proceed regardless of the visa number availability at the time of adjudication to determine the applicant's eligibility.
(2) Handling of Visa-Regressed Cases by USCIS Field Offices. If a visa number is not immediately available at the time of adjudication, USCIS Field Offices must transfer all regressed visa number cases to the designated locations described below. USCIS Field Offices should ensure that the interview and all other required processing requirements (except request for allocation of visa number from DOS) have been completed before transferring those cases. For those cases, a visa number should not be requested by USCIS Field Offices because the request for allocation of the visa number will be initiated by the office that will be storing the case. Note: Headquarters sent appropriate worksheet and manifest forms to all field offices as attachments to the December 15, 2010 memorandum “Instructions for Handling Regressed Visa Number (Employment-based and Family-based) Adjustment of Status Cases Interviewed at USCIS Field Offices.”
(A) Employment-based Cases. After completing case processing at the local level, USCIS Field Offices must transfer all employment-based regressed visa number cases to the Texas Service Center (TSC).
(B) Family-based Cases. Upon completion of case processing at the local level, USCIS Field Offices must transfer all family-based regressed visa number cases to the National Benefits Center (NBC).
Special Priority Date Situations
Former Western Hemisphere Cases
Natives of the Western Hemisphere with priority dates before January 1, 1977 retain that priority date for a subsequently filed preference petition. Class members are natives of the Western Hemisphere present in the United States prior to March 11, 1977 who were known by the Service to have a priority date between July 1, 1968, and December 31, 1976, and who were clearly eligible for an immigrant visa. Although it is unlikely that there are many such class members who would still be seeking a visa, they ar
e entitled to retain their earlier priority date for an subsequent preference visa petition.
Former Third and Sixth Preference Cases
An alien with a third or sixth preference visa petition filed before October 1, 1991, retains the original priority date for a new petition filed prior to October 1, 1993, to accord the beneficiary status pursuant to section 203(b)(2) or (3), as appropriate, in accordance with Pub. L. 101-649, Section 161. The alien must apply for a visa within two years of notification that a visa number is available.