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Immigration Law
University of Dayton School of Law
Conte, Francis J.

Immigrant Categories

The Fundamentals: Quotas and Preferences
In General

Subjective intent: Presumption of immigration; burden on alien to show that she won’t stay
No judicial review of consular decisions, e.g., denial of visa
Two aspects to immigration visa

Quantitative: Quotas – INA § 202
Qualitative: Reasons why person can be denied – INA § 212

Waivers available if certain relatives in U.S. and hardship demonstrated to those relatives; high burden

Essential terms:

Petitioner: U.S. citizen
Beneficiary: Individual seeking resident status or visa
Chargeability: Country of birth
Derivative status: derivative is a dependent of beneficiary

Immediate relatives do not have derivatives


Non-quota: immediate relative (parent, spouse, child)
Quota: limit as per Visa Bulletin

Worldwide cap
Per-country cap
Preference category within these caps

a) Immigrants Exempt from the General Quotas

Immediate relatives

Spouses, parents and children of USC, except citizen son or daughter must be at least 21. INA § 201(b)(2)(A)(i)
“Child” = unmarried and under 21. INA § 101(b)(1)

LPRs returning from temporary visits abroad. INA § 101(a)(27)(A), 201(b)(1)(A)

Either exempt at time of original admission or already counted once before

Certain former US citizens. INA § 101(a)(27)(B)
Children born to LPRs temporarily abroad. INA § 201(b)(2)(B)
Persons who receive certain permanent forms of discretionary relief from removal. INA § 201(b)(2)(B)
People fleeing persecution. INA § 201(b)(1)(B)
Parolees as per discretion of AG. INA § 212(d)(5)

Grant of parole is not considered an admission

Special groups ad hoc on a nonquota basis, as determined by Congress. INA § 201(b)(1)(C)

Issuance of limited number of additional immigrant visas on a one-shot basis to nationals of underrepresented countries
Congress has also occasionally awarded LPR status on a nonquota basis to groups of people who arrive from selected countries as part of an unusual migration; one-time-only statutes
Temporary legislation enacted to allow certain nurses already working in US on nonimmigrant visas to adjust to LPR without regard to usual numerical caps

b) Immigrants Subject to the General Quotas

Programs and Ceilings

Family-sponsored immigrants

Generally immigrants who have certain family members in the US
Qualifying categories listed in INA § 203(a)
Formula: 480,000 minus # of immediate relatives admitted in preceding year, plus any employment-based visas available but not used preceding year. Ceiling must always be at least 226,000 (so this is really the floor). INA § 201(c)

Formula result of Immigration Act of 1990
Number of immediate relatives is deducted for the supply available during next fiscal year to other family members of US citizens and LPRs

Employment-based immigrants

Certain occupational skills, certain investors, and misc others. INA § 203(b)

Annual worldwide limit on employment-based immigrants is 140,000 plus any family-sponsored visas that were available by not used in the preceding year

Diversity immigrants

Admitted because they hail from countries or regions from which the US has received relatively little immigration in recent years. INA § 203(c).


23,400 plus any visas unused by 1st and 2nd


Siblings of over-age-21 USC

65,000 plus any visas unused by 1st, 2nd, and 3rd

Employment-based program: five preference categories. INA § 203(b)


Priority workers: immigrants with “extraordinary ability in the sciences, arts, education, business, or athletics;” “outstanding professors and researchers;” and certain “multinational execs and mgrs.”

28.6% of all employment-based plus any unused by 4th and 5th


“Members of the professions holding advanced degrees” (usually grad degrees) and “aliens of exceptional ability”

28.6% of all employment-based visas plus any unused by 1st


“Skilled workers, professionals” (without advanced degrees) and other workers who can show labor is needed in the US

28.6% of all employment-based visas plus any unused by 1st and 2nd. Of these, no more that 10,000 (minus an offset for some of Guat and Salv) may go to “other workers”