Mark A Ivener, A Law Corporation

State Dept. Releases Information on Employment Second and Third Preference Availability for July


The Department of State’s Visa Office has released the following information on employment second and third preference visa number availability for July 2008:

EMPLOYMENT SECOND PREFERENCE. The Department noted that questions have been raised regarding the way visa numbers have been provided to China and India in the employment second preference categories beginning in April. Under the Immigration and Nationality Act, if total demand for visas in an employment preference category is insufficient to use all available visa numbers in that category in a calendar quarter, the unused numbers may be made available without regard to the annual per-country limit, the Department noted. For example, if the second preference annual limit were 40,000, number use by “All Other Countries” were estimated to be only 25,000, and the China/India combined number use based on their per-country limits were 6,000, there would be 9,000 numbers unused. Those 9,000 numbers could then be made available to China and India applicants without regard to their per-country limits.

The Department determined that the demand from “All Other Countries” for second preference numbers, plus the quantity of numbers available under the China and India second preference per-country limit, would be insufficient to use all available numbers under the annual limit for this category. Therefore, the unused numbers have been made available to China and India second preference applicants. Because such unused numbers must be made available strictly in priority date order, the China and India applicants have been subject to the same cut-off date as worldwide applicants. As there are more employment second preference applicants from India and the Indian applicants may have earlier priority dates, the Department said it is likely that Indian applicants will receive a larger portion of the available numbers than Chinese applicants.

The employment second preference category is “Current” for all countries except China and India. If at any point it appears to the Department that demand from “All Other Countries” would use all available numbers, an adjustment would be made to the China/India cut-off date. Therefore, providing the unused numbers to China and India “in no way disadvantages applicants from any other country, and helps to insure that the worldwide annual limit can be reached,” the Department noted.

EMPLOYMENT THIRD PREFERENCE. Demand for numbers, primarily by USCIS for adjustment of status cases, has brought the entire employment third preference category to the annual numerical limit by the end of June. As a result, this category will become “unavailable” beginning in July and will remain so for the remainder of fiscal year 2008, the Department said. Such action will be temporary, and employment third preference availability will return to the cut-off dates established for June in October, the first month of the new fiscal year.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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