Admissions Categories : Immigration

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    1. Admissions Categories (274-90, State Dep’t Visa Bulletin) INA §§ 101(b), 201, 203

National Origin Quotas

Pre-INA: admission quotas corresponded to % of US population of that ethnicity

Ceilings and Country Limits: INA set Eastern hemisphere limit at 150,000; in 1976 set 20,000 per-country limit (E. hemi. only); in 1978 eliminated hemisphere distinction → the 20,000 blanket country limit mainly affected Mexico

Preference Categories: originally 7-tier system adopted 1965, revised 1990

Family-sponsored immigration: INA § 201(b)(2)(A) → immediate relative of USC not subject to numerical limitation; § 203(a) family-based preferences (subject to limit)

Employment-based preferences: § 203(b)

Diversity lottery

[Refugee provisions, including admission ceilings, are set separately]

Immigration process

Petitioner = US-based family member or employer who files petition on behalf of intending immigrant (Beneficiary)

Priority Date: set as of date when first relevant document in application is filed; priority date does not change.  Refer to State Department Visa Bulletin to see which priority date is current for any given category of immigrant visa (http://travel.state.gov)

Family-sponsored immigration

No quota → immediate relative (spouse/child of USC; parent of USC over age 21

FS1: unmarried son or daughter of USC (i.e., over age 21)

FS2A: spouse or unmarried child of LPR

FS2B: unmarried son / daughter of LPR (over age 21)

FS3: married son / daughter of USC

FS4: brother / sister of USC

Statutory definition of “child” (INA § 101(b)(1)): Under 21 and unmarried

Stepchildren and legitimated children if relationship established before child is 18

Adopted children if adopted before child is 16

Aging-out protection: § § 201(f), 203(h), 204(k) – child’s age as of the visa petition filing date is what is relevant for eligibility purposes

Conversion: if beneficiary’s eligibility status changes while application is pending (except for aging-out), but s/he remains eligible in a difference preference category, the petition is automatically converted – priority date does not change

Example: Beneficiary, adult son of USC (FS1) marries → converts to FS3

Why exclude others (e.g., LPRs’ married sons/daughters/brothers/sisters)? Cultural concept of nuclear family – encourage assimilation, naturalization – need to draw line somewhere, limit scope of benefit

Employment-based immigration (Overview – see also section (E), below)

EB1: Priority Workers (“extraordinary ability”)

EB2: professionals with advanced degrees (* requires sponsor)

EB3: skilled workers (with B.A.), unskilled workers (* requires sponsor)

EB4: special immigrants

EB5: investors (low demand for this category)

Spill-down / cycle-up: if the numbers of EB1 aren’t used up, will spill down to EB2 and so on.  If EB5 numbers aren’t used up, will cycle back up to EB1, then down…

Sample Problems:

Problem 1: LPR since 1993 marries Kenyan who has 6-yr old, wants to get them in.

§ 101(b)(1)(c) defines “child” to include one legitimated under own country’s law or stepchildren.

If he became a citizen (no wait, he has 5 yrs), their admission would be immediate under § 201(b)(2)(A)(i) (immediate relatives).  If not legitimated, child could be a secondary beneficiary of wife under § 203(d).

Reg says after-acquired family can’t follow along.

Note: 203(d) follow-along LPRs count towards ceiling of pref the “follow-ee” comes under.

Or, they’d fall under § 203(a)(2)(A) (FS2A) – 4-yr wait for Kenyans.

Problem 3: Filipino LPR for 2 yrs. under FS3, brought wife under 203(d), left 19 yr. old daughter (now 21).

Can’t come under 203(d) (in which case age would be determined by date visa number became available for parent) b/c she didn’t seek status w/in one yr. of availability (when visa number came up) per 203(h).

Child Status Protection Act of 2002 made it possible to keep your “age” at parent’s filing if you file w/in a year; otherwise you get age at your admission (I think).   

Unmarried daughter of LPR; family preference FS2: age calculation will determine 2A or 2B.

203(h)(3) (conversion of aged-out 203(d)s): Date of ‘original petition’ is the one that matters.

Father’s petition seems to be the orig (but DHS has not ruled on this)

Date father got admitted or date father petitioned?

Latter would be 1992 so daughter could come now b/c we’re up to 1996 for Filipinos (unlikely).

Former could give her a long wait – with a 10-yr lag she’d have 8 left.

Or her petition could be “original”.  If she filed a 203(d) petition that failed, she’ll be adjusted to FS2B but she will retain that date as her priority date (doesn’t seem to make sense b/c it wd req people who age out to go thru step of filing 203(d) petition to get that benefit – not what it sounds like it’s doing).

Problem 5: Client is HS dropout & CEO of Brazilian million $ firm.  Wants to become LPR.

Multinational Exec: 203(b)(1)(c)? His co isn’t multinational; would have to move to US to manage a sub/affiliate.

Employment creation: 203(b)(5)? needs $1mil. and ability to create 10 jobs (best bet).

Skilled worker: backlog; would need petitioner and labor cert.

Aliens who are members of professions holding advanced degrees or with exceptional ability? Hard.

Diversity immigrant: must have HS diploma.

Four categories of regulation, 1-3 with ceilings under the 1990 Act:

Family-sponsored: 480K

Employment-based: 140K

Diversity: 55K

Refugees: No limit, between 27-125K in recent years.

Family-Sponsored Categories: INA § 201(b)(2)(A), 203(a)

Immediate relatives, INA § 201(b)(2)(A): Spouses, unmarried children under 21, and parents of U.S. citizens. No quotas and no real waiting periods. Almost takes up family ceiling by itself.

Preference 1: Unmarried adult sons and daughters of U.S. citizens. 23,400 admissions/year.

Preference 2: 114K annually. Extras from other categories go here.

2-A: Spouses and minor children of permanent residents.

2-B: Adult children of permanent residents. Can’t take more than 23% of 2nd preference admissions.

Preference 3: Married sons and daughters of U.S. citizens. 23,400/year.

Preference 4: Brothers and sisters of U.S. citizens. 65,000/year.

Derivative beneficiaries: 203 (d).

Spouses and unmarried minor children can be admitted in the same preference category and at the same time as the principal alien. (or can follow to join)

Only works if the relationship existed when the principal was admitted; “after-acquired” spouses and children of LPRs must use the second preference.

Doesn’t apply to immediate relatives.

Waiting periods for family preference are very long because the quotas get used up: over 10 years before priority date becomes current in some categories.

The floor: INA § 201 (c). Minimum of 226K admissions in preference categories. This assures immediate relatives don’t take all the spaces in the 480K, and means realistically family admissions will pierce that cap regularly.

Conversion: If a family member naturalizes, marries, etc. the visa petition automatically converts to the newly appropriate category, and retains the original priority date.

Employment-Based Categories: INA § 203(b)

Preference 1: Priority workers. About 40K/year

1, Aliens with extraordinary ability (requires sustained national or international acclaim)

2,  Outstanding professors and researchers

3,  Some multinational executives and managers (see INA § 101(a) (44))

Preference 2: About 40K/year

Professionals with advanced degrees, those who because of exceptional ability in sciences, arts, and business, will substantially benefit the U.S.

Services must either be sought by an employer (labor certification required), or AG must grant a waiver in the national interest.

Preference 3: About 40K/year

Professionals with bachelors’ degrees, and skilled/unskilled workers filling positions for which there are shortages of Americans. Labor certification required.

No more than 10K unskilled workers a year. This is actually only 5K because of a 5K offset for NACARA beneficiaries.

Preference 4: Special immigrants, defined in INA § 101(a)(27)(C)-(J). About 10K/year.

Religious workers, former long-term employees of US government or international orgs, other misc

Preference 5: Millionaire investors. About 10K/year. (Never used up.)

Investors who will create minimum 10 jobs in the U.S. economy, baseline investment $1M, with some adjustments.

Receive conditional permanent residence, reviewed after 2 years. Controversial.

Required percentage distribution: 28.6% visas for each preference 1-3, 7.1% each for 4 and 5. When extra numbers, they’re allocated proportionally among 1-5.

The Diversity Lottery: INA § 203 (c)

Grants visas by lottery to countries that send fewer numbers of immigrants.

Ineligible countries: Brazil, Canada, China (mainland),  Columbia, Dom. Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, S Korea, UK (minus N Ireland), Vietnam

Must have high school education or job experience in a job that requires 2 years of training or experience.

Can bring immediate families, but they count against the total diversity quota.

Often attracts over 10M applicants. Complicated allocation formula favors Europe and Africa.

The 55K cap is really 50K now because of a 5K offset for NACARA beneficiaries.

    1. Constitutional Limits on Admissions Regulations (290-302):

Fiallo v. Bell (1977): unwed fathers/illegit offspring sought to access parent or child prefs.  Ineligible under old version of § 101(b)(1).  (Current stat permits pref if bona fide parent-child relationship is established.)

Applying RB (political question, plenary powers, OK to make laws for aliens that would be unacceptable w/r/t USC), Court found no EPC violation (no impermissible classification on basis of gender or legitimacy status)

Court maintains this is about sovereign power to exclude, not rights of affected USC relatives (see also Kleindeinst v. Mandel: rights of 3rd party USC not external limit on Congressional plenary power over immigration)

Marshall’s dissent: affected USC rights should control.  Wd extend judicial review far into Cong’s imm authority

Court notes that it retains some “limited responsibility” to review Congressional line-drawing in immigration – unresolved question how Court would respond to explicit racial classification in immigrant admissions!