the Visa Numbers, Preference
1. The immigrant Visa Number and the U.S. Department of State's Visa Bulletin
The U.S. Immigration and Nationality Act (INA) limits the number of immigrant visas that can be issued each year. As a result, the U.S. Department of State regulates the immigrant visa numbers to ensure that the annual statutory limit is not exceeded.
An immigrant visa's "Priority Date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for Form I-140 application is not always current for some alien applicants coming from such countries as China and India.
The visa bulletin of U.S. Department of State summarizes the availability of immigrant numbers. U.S. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security reports applicants for adjustment of status. The immigrant visa numbers allocations were made, to the extent possible, in chronological order of reported priority dates.
The Visa Bulletin is generally published around the middle of the preceding month. The Visa Bulletin reflects available visa numbers for cases with "priority dates" before the listed dates. To check the current Visa Bulletin, please visit http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html
The beneficiary of a labor certification or immigrant visa petition is given a priority date for obtaining an immigrant visa based on when the labor certification or immigration visa petition (Form I-140 or I-130) was filed. When the U.S. Department of State determines that the current rate of demand might lead to too many visas being issued, it imposes cut-offs based on these priority dates. When a cut-off date is imposed, it means that only individuals with priority dates earlier than the dates listed are eligible to apply for U.S. permanent residence.
To view the most recent immigrant visa availability, refer to the U.S. Department of State Visa Bulletin. A column marked C indicates current status and that there is no quota backlog for this category. If the country in which the alien was born is marked with a C, you may file an I-485 adjustment of status, or be eligible for consular processing. If the country in which the alien was born is marked with a U, it means the immigrant visa number is not available.
With the change of immigration regulation, rules on adjustment of status become more restricted. You must provide visa records to establish your and your family member's continuous lawful status since you or them entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.
2. The Preference Classes for Employment-based and Family-based Immigration
Preference Classes are numbered categories which define types of immigrant visas. There are separate sets of preference classes for employment-based immigration and family-based immigration. An immigrant case must fit into one of the preference classes for an immigrant petition to be approvable, and the preference class must be indicated on the form filed for the immigrant petition - the I-140 for employment-based petitions, and the I-130 for family-based petitions.
The preference classes for employment-based I-140 immigrant visa petitions are:
First Preference: Alien of Extraordinary Ability, Outstanding Researcher or Professor, and Multinational Executive or Manager.
Second Preference: Advanced Degree Professional (job requires at least a Master's degree), Alien of Exceptional Ability, and National Interest Waiver (NIW).
Third Preference: Professional (job requires at least a four-year Bachelor's degree); Skilled Worker (job requires at least two years of experience).
Fourth Preference: Special Immigrants - 11 different rarely-arising situations.
Fifth Preference: Alien Investors - those creating U.S. Employment Opportunities.
The preference classes for family-based I-130 petition for alien relatives are:
First Preference: Unmarried Sons and Daughters of U.S. Citizens.
Second Preference Part A: Spouses and Children (under 21 years of age) of U.S. Permanent Residents.
Second Preference Part B: Unmarried Sons and Daughters (over 21 years of age) of U.S. Permanent Residents.
Third Preference: Married Sons and Daughters of U.S. Citizens.
Fourth Preference: Brothers and Sisters of U.S. Citizens.
3. Understanding the Priority Date
The priority date is the date the first application for permanent residence is filed with a government agency. For an employer-sponsored case, this is either the date a Labor Certification is first filed with the Department of Labor, or the date of I-140 petition for a Labor Certification waiver case, such as EB1 or NIW. For a family-sponsored case, this will be the date the I-130 petition for alien relative is filed.
The Priority Date establishes the foreign national's place on line for an immigrant visa. There are limited numbers of immigrant visas available for each of the various categories. These categories are called Preference Classes. Each preference class has its own queue for immigrant visas, and the priority date and the preference class of the petition determine how long the person being petitioned for has to wait for a Green Card.
If your priority date is before the date listed for your category and you have an approved I-140 petition, you may file an I-485 adjustment of status application; or be eligible for an immigrant visa if you are processing your change of status through a U.S. consulate in your home country instead of filing an I-485 adjustment of status application with USCIS.
If your priority date is on or after the date listed for your category, you cannot file your I-485 adjustment of status or get an immigrant visa at a U.S. consulate at this time. You need to maintain your current immigration status to remain in the U.S. There is no way to get ahead on the priority date list other than filing an immigrant visa petition in a higher preference category, if you are qualified.
4. The Country of Birth vs. the Current Citizenship
A foreign national must wait for his or her country’s quota to become current before applying for U.S. permanent resident status. However, under the doctrine of cross-chargeability, a green card applicant may use the country of chargeability of his or her spouse in order to gain a leg up on the per-country quota.
If your country has a long wait time for approval of a green card due to over utilization of the green card quota, you may be able to use the country of origin of your spouse to receive your green card sooner that what you had originally anticipated.
The country to which a foreign national is charged is the foreign national's country of birth, not the current country of citizenship or nationality. Countries which often become oversubscribed more often than most other countries include India, Mexico, Philippine, and China. The immigrant visa availability for these countries is broken out separately by the U.S. State Department on its visa bulletin web site.
The visa numbers are based on your country of birth, regardless of your current citizenship. However, if your spouse was born in another country that is not subject to the backlog at this time, you will be able to cross-charge your I-485 adjustment of status application to your spouse's country. This is known as alternate chargeability. This is only possible if both you and your spouse's I-485 are filed at the same time. If your child was born in a third country, you cannot use your child's country of birth for this purpose.
The cross-country chargeability is most useful when the priority dates are backlogged for certain countries. For your case, the husband was born in India and the wife was born in Bangladesh, then the person born in India can request chargeability under the spouse to file the I-485 application, if and when the priority date would not allow the filing by the person from India.
5. The Chargeability Rule to File Form I-485 Application
Immigration to the United States is numerically limited. This is controlled by an annual allocation of immigrant visa numbers. Each family-based immigrant category and employment-based immigrant category has its own limited immigrant visa number. Additionally, there is a per-country limit of 7 percent of the total immigrant visa numbers.
The maximum number of family-sponsored and employment-based preference visas that can be issued to citizens of any country in a fiscal year. The limits are calculated each fiscal year depending on the total number of family-sponsored and employment-based visas available. No more than 7 percent of the visas may be issued to natives of any one independent country in a fiscal year. Because of the combined workings of the preference system and per-country limits, most countries do not reach this level of visa issuance.
The foreign state of chargeability is a United States immigration concept – it is the country determined to be the applicant's origin. In general, the applicant's country of birth will determine their country of chargeability. For certain applicants born in oversubscribed countries such as India and China, approval to be chargeable to another country can significantly reduce the waiting time for their adjustment of status or consular processing of their green card application. This process is also known as alternate chargeability.
The basic rule of chargeability is that one is charged against the quota for the country of his or her birth. This determination is not tied to citizenship or nationality. A person born in a particular country is subject to that country's quota. For example, a potential immigrant is born in India. He subsequently becomes a Canadian citizen. Unless this individual fits within one of the exceptions discussed below, he will still be subject to the backlogged quota for India, even as a Canadian citizen.
In some circumstances, an immigrant can cross-charge to the country available to his or her spouse (provided that the spouse is immigrating also). For example, cross chargeability would usually be available if a person born in India were to marry a person born in Canada. If a U.S. employer filed an employment-based, second-preference (EB2) petition on behalf of the individual born in India, she or he would be able to use the Canadian chargeability, if immigrating with the spouse. Historically, this would mean immediate eligibility for immigration benefits under the Canadian quota, rather than many years of waiting under the heavily-backlogged Indian quota.
6. USCIS Adjudicator's Evaluation for Form I-485 Petition
Simply presenting evidence which relates to the Form I-485 application requirements does not necessarily mean that the I-485 application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence.
If the USCIS adjudicator determines that the evidence does not meet the standard for the Form I-485 application, the additional evidence may be requested from the petitioner, or it is called Request For Evidence (RFE).
7. How to Use the Dates of Filing Applications for Form I-485 Adjustment of Status
The procedures regarding immigrant visa availability have changed by U.S. Department of State, for the benefit of intending U.S. permanent resident (i.e., greencard) applicants. These changes are reflected in the Visa Bulletin which may be viewed at http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
The U.S. Department of State’s (DOS’s) monthly Visa Bulletin will now include two charts per visa preference category for Family-based and Employment-based applicants as "Application Final Action Dates", and "Dates for Filing Applications." In Sections 4.B. (Family-Sponsored Preference Cases) and 5.B. (Employment-Based Preference Cases), “Dates for Filing Applications” are listed.
The chart for "Dates for Filing Applications" reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date
For many employment-based Green Card applicants' Adjustment of Status using USCIS Form I-485 inside United States, U.S. Citizenship and Immigration Services (USCIS) will use the “Dates for Filing Applications” chart (in lieu of the “Application Final Action Dates” chart in paragraphs 4.A. and 5.A.) to determine when an application for adjustment of status (USCIS Form I-485) may be filed. Adjustment applicants may also visit "www.uscis.gov/visabulletininfo" for more information.
The statement in Visa Bulletin is consistent with USCIS’s announcement that each month it will “monitor the visa numbers and post the relevant DOS Visa Bulletin chart” on its website under “When to File”. An intending greencard applicant can then use this information to determine when to file an adjustment application (Form I-485 Application for Adjustment of Status). The “Dates for Filing Applications” chart may be used only when USCIS determines that additional immigrant visa numbers are available. Otherwise, per USCIS guidance, the “Application Final Action Dates” chart must be used by intending Adjustment of Status applicants.
8. The Consular Processing
There are two primary paths to U.S. permanent resident status (a Green Card). USCIS Form I-485 application of adjustment of status is a process by which an eligible person, who is already in the United States, can apply for U.S. permanent resident status without having to return to his/her home country to complete the processing of Green Card application.
Another primary path to U.S. permanent resident status is called "Consular Processing." An foreign person who is the beneficiary of an approved immigrant petition, such as Form I-140 approval or Form I-130 approval, and has an immigrant visa number immediately available may apply at a U.S. Department of State (DOS) consulate abroad for an immigrant visa, to come to U.S. and be admitted as a permanent resident. Thus, this pathway is referred to as “consular processing.”
The first step in consular processing is to determine if you fit into a specific U.S. immigrant category. Many immigrants become eligible for a U.S. Green Card through a petition filed by a family member (Form I-130 approval) or U.S. employer ( Form I-140 approval). The employment based immigration categories require the U.S. employer to file a Form I-140 - Petition for Alien Worker. The family based categories require that a U.S. citizen or permanent resident relative file a Form I-130 - Petition for Alien Relative.
If the immigration petition is approved (Form I-140 approval or Form I-130 approval) and if you are the beneficiary of the petition and living outside the U.S., USCIS can send the approved petition to the Department of State’s National Visa Center (NVC) for consular processing, where it will remain until an immigrant visa number is available. The National Visa Center will send you a notice of receipt. The National Visa Center will send you another notice indicating when you should submit the immigrant visa processing fees and supporting documentation.
After your fees and supporting documentation are received by the National Visa Center, they will send you a packet of forms and instructions to your foreign address. Thereafter, after submission of those forms, the U.S. consulate near your foreign address will send you an appointment letter including instructions for the medical exam, and it will indicate when you must appear at a U.S. consulate for an interview. After the interview, the U.S. consular will review your application, and decide either granting your visa or requesting the USCIS to reconsider your petition.
9. Are Adjustment of Status Interviews always Required for Form I-485 Application?
If you have applied for a Green Card within U.S. through the procedure known as "adjustment of status" using USCIS Form I-485, it is likely to be called in for an interview by USCIS (U.S. Citizenship and Immigration Services), as the last step in your immigration application process. For employment-based Form I-485 application, it is very possible that the interview will be waived. But for marriage-based Form I-485 application, these will be certainly an interview.
In many Form I-485 application cases, usually where the alien immigrant is applying for a Green Card based on employment in the United States, USCIS will decide that an interview is not necessary. The alien applicant will receive its decision on Form I-485 application by mail in writing, without an interview. Or USCIS may request additional documents from the Form I-485 applicant, and then make a decision.
However, if the alien applicant are applying for Green Card of Form I-485 application based on marriage, the applicant mat be called in for an adjustment of status interview. That’s because USCIS is very concerned about people committing marriage fraud, and wants to have a chance to test the spouse on knowledge of everyday matters that will prove that you are sharing a life.
If you applied to Form I-485 adjusting status, based on marriage to a U.S. citizen or lawful permanent resident, it is certainly that you and your U.S. spouse will be called in for an immigrant interview. The interview is to ensure that the marriage is genuine, and not merely entered into for the purpose of obtaining a Green Card.
Also for Form I-485 application based on marriage, if USCIS suspects marriage fraud in a Form I-485 application case, it may separate you and your spouse in separate rooms, for what is called a “marriage fraud interview.” That means USCIS will ask each of you the same questions, and then compare your answers. If the answers don’t match up well, you can expect your Green Card to be denied.
If you are called for an interview for some reason, with proper preparation, you should not fear the adjustment of status interview, and it does not mean that your application for adjustment of status has been singled out for extra scrutiny. An immigration interview is a normal part of the process, allowing USCIS to confirm the information you have provided, and review all the facts with you present.
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