The operation of the immigrant numerical control system – Part II

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By Michael Phulwani

The Department of State is responsible for administering the provisions of the Immigra-tion and Nationality Act (INA) relating to the numerical limitations on immigrant visa issuances. This information sheet explains the operation of the immigrant number allotment and control system. This is the concluding part of this article.

3. Background information on the system and clarification of some frequently misunderstood points:

Applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.

If an applicant is reported documentarily qualified but allocation of a visa number is not possible because of a visa availability cut-off date, the demand is recorded at VO and an allocation is made as soon as the applicable cut-off date advances beyond the applicant’s priority date. There is no need for such applicant to be reported a second time.

Visa numbers are always allotted for all documentarily qualified applicants with a priority date before the relevant cut-off date, as long as the case had been reported to VO in time to be included in the monthly calculation of visa availability. Failure of visa number receipt by the overseas processing office could mean that the request was not dispatched in time to reach VO for the monthly allocation cycle, or that information on the request was incomplete or inaccurate (e.g., incorrect priority date).

Allocations to Foreign Service posts outside the regular monthly cycle are possible in emergency or exceptional cases, but only at the request of the office processing the case. Note that should retrogression of a cut-off date be announced, VO can honor extraordinary requests for additional numbers only if the applicant’s priority date is earlier than the retrogressed cut-off date.

Not all numbers allocated are actually used for visa issuance; some are returned to VO and are reincorporated into the pool of numbers available for later allocation during the fiscal year. The rate of return of unused numbers may fluctuate from month to month, just as demand may fluctuate. Lower returns mean fewer numbers available for subsequent reallocation. Fluctuations can cause cut-off date movement to slow, stop, or even retrogress. Retrogression is particularly possible near the end of the fiscal year as visa issuance approaches the annual limitations.

Per-country limit: The annual per-country limitation of 7 percent is a cap, which visa issuances to any single country may not exceed. Applicants compete for visas primarily on a worldwide basis. The country limitation serves to avoid monopolization of virtually all the annual limitation by applicants from only a few countries. This limitation is not a quota to which any particular country is entitled, however. A portion of the numbers provided to the Family Second preference category are exempt from this per-country cap. The American Competitiveness in the Twenty-First Century Act (AC21) removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.

When visa demand by documentarily qualified applicants from a particular country exceeds the amount of numbers available under the annual numerical limitation, that country is considered to be oversubscribed.

Oversubscription may require the establishment of a cut-off date which is earlier than that which applies to a particular visa category on a worldwide basis. The prorating of numbers for an oversubscribed country follows the same percentages specified for the division of the worldwide annual limitation among the preferences. (Note that visa availability cut-off dates for oversubscribed areas may not be later than worldwide cut-off dates, if any, for the respective preferences.)

Comprehensive new policy on DNA testing: The Department of State has recently issued comprehensive new policy guidance on the use of DNA testing in the visa application process.

In this new guidance, the State Department declares DNA technology to be the only acceptable non-documentary method of providing the biological relationship. The preferred specimen collection technique for DNA testing is by buccal (cheek or mouth cavity) swab.

According to the Depart-ment, DNA testing is expensive, complex and time consuming and this should be recommended only if no other credible proof of the claimed relationship exists. Consular officers should treat DNA testing as the last resort: all other possible methods for confirming the existence of a biological relationship must be exhausted before recommending this course of action. Even then, DNA testing may only be recommended, but never required by the consular officer.

Consular officers may recommended DNA testing solely to prove a relationship, they may never recommend  DNA testing in an attempt to disprove a relationship, Only DNA test results reporting a 99.5  or greater degree of certainty as proof of a biological relationship between a parent and child may be accepted in visa cases.

The Department clarifies that consular officers adjudicating Form I-130 Alien Relative Petitions are not authorized to approve the petition, if DNA test results are the sole evidence of the claimed biological relationship. Such cases are not clearly approvable. As per the provisions of Foreign Affairs Manual, accordingly they must be forwarded to the USCIS for adjudication.

Parenthetically, USCIS is authorized to approve I-130 petitions solely on DNA testing.

Under a new procedural protocol, All DNA collections must take place at the embassy or consulate; it is no longer acceptable to collect samples at an off-state facility, DNA samples are to be taken only by lab technicians employed by the panel physician. Even then, these lab technicians seeking to take DNA samples at the embassy or consulate must be first approved by the posts’ consular management. In so doing, consular management must, inter alia, complete CLASS name checks and review previous visa applications submitted by the technician. Consular management may validly reject a lab technician, who has multiple visa refusals.

The DNA collection must be witnessed by the consular officer or another American citizen employee of the consular section possessing an appropriate national security clearance. The collection itself may be undertaken at a regular interview window.

Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

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