The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued to aliens seeking to become lawful permanent residents (get a Green Card) each year.
There are no limits on immigration visas for “immediate relatives’ of US citizens – they’ re always available.
“Immediate relatives include:
- The spouses of U.S. citizens
- The children (unmarried and under 21 years of age) of U.S. citizens
- The parents of U.S. citizens at least 21 years old
- Widows or widowers of U.S. citizens if the U.S. citizen filed a petition before his or her death or if the widow(er) files a petition within 2 years of the citizen’s death.
There are numerical limits for family-sponsored and employment-based immigrant preference (including EB-1 visa) categories.
The limit number is set by the US Department of State. Employment-based visas are generally limited to 140,000 by year. “By statute, these annual visa limits may be exceeded when certain immigrant visas from the previous fiscal year’s allocation were not fully used.” Family and employment visas have sub-categories. A percentage of overall visa numbers is assigned to each sub-category. Additionally, “there are limits to the percentage of visas that can be allotted based on an immigrant’s country of chargeability (usually the country of birth).”
If the demand for visas is more than the number of available visas, in any given year and any given category or country, a waiting list (called a visa queue) is established. Distribution of visas, across all categories, is determined by “a prospective immigrant’s preference category, country of chargeability, and priority date. The priority date is used to determine an immigrant’s place in the visa queue.”
Immigrants can apply for an adjustment of status to obtain lawful resident status – if their priority date becomes available or current – and they are currently in the US. Immigrants who use consular processing must have an available or current priority date too.
How to find your priority date
“If you are a prospective immigrant, you can find your priority date on Form I-797, Notice of Action, for the petition filed on your behalf. The waiting time before receiving an immigrant visa or adjusting status depends on:
- The demand for and supply of immigrant visas.
- The per-country visa limitations.
- The number of visas allocated for your preference category.”
Priority Dates for Employment-Based Preference Cases
Immigrants seeking an employment-based visa (such as EB-1A, EB-1B, or EB-1C) visa will have their priority date set as follows:
- If “your preference category requires a labor certification from Department of Labor (DOL),” then the priority date is the date the LOL is accepted for processing by the DOL. “To preserve the priority date, the petitioner must file Form I-140, Immigrant Petition for Alien Worker, with USCIS within 180 days of the DOL approval date on the labor certification or else the labor certification is no longer valid.”
- If “your preference category does not require a DOL labor certification, then the priority date is the date USCIS accepts Form I-140 for processing to classify the sponsored worker under the requested preference category.
Generally, labor certification is not required for EB-1 visas.