December 1, 2011

Per Country Limit on Visa Numbers

A bill introduced last month by Rep. Jason Chaffetz, R-Utah, would make it easier for companies to recruit international talent from countries that often run out of immigrant visas for green cards. This bill was fast tracked through the House in only two months and was approved on November 29, 2011. His legislation removes the caps on the number of skilled laborers who can immigrate from each country, though it does not change the number of visas available annually. The current law limits immigrant visas available by country of birth. In particular, no country may use more than 7 percent of the visas available in a given year. His bill also raises the limit on family-based visas from 7 percent per country to 15 percent per country. The idea, says Chaffetz, is to allow companies to find the best available talent, instead of finding the best available talent from among those who have unused visas.

Background: To be eligible for legal permanent resident status in the U.S., a foreign national will need an immigrant visa. An immigrant visa is issued based on family or employment based sponsorship. Generally, when the United States Citizenship and Immigration Service (USCIS) approves an immigrant visa petition filed on behalf of a foreign national, the individual is eligible to apply for legal permanent resident status, when an immigrant visa is available.

The worldwide level for annual employment-based preference immigrant visas is set at 140,000. Immigrant visas are numerically limited within the employment based category by country of chargeability. No more than twenty-seven percent of the annual employment based immigration visa numbers may be used in each of the first three quarters in the fiscal year. Therefore, the Department of State (DOS) will allow for approximately 37,800 immigrant visas to be issued each quarter. This means only 37,800 foreign nationals may obtain legal permanent resident status each quarter. There is also a per-country limit for immigrants in both employment and family sponsored categories set at 7% of the total annual number, i.e., 25,620 per year per country. The proposed legislation removes the 7% per country limit, nationals from countries like India, China, Mexico and the Philippines stand to gain the most as their categories are generally to most oversubscribed.

When demand exceeds the number of available visas, the category is deemed oversubscribed and a cut-off date is established for the oversubscribed category. The cut-off date and the foreign national’s priority date will determine when the individual will be eligible for submitting the final application to obtain legal permanent resident status.