§ 202 (8 USC 1152) Numerical limitations on individual foreign states |
§ 202 (8 USC 1152) Numerical limitations on individual foreign states |
Per country level
Nondiscrimination
Except as specifically provided in paragraph (2) and in section 101(a)(27) [8 U.S.C 1101(a)(27)] , section 201(b)(2)(A)(i) of this Act [8 U.S.C 1151(b)(2)(A)(i)] , and section 203 of this Act [8 U.S.C 1153] , no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.
Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.
Per country levels for family-sponsored and employment-based immigrants
Subject to paragraphs (3), (4), and (5) , the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 203 of this Act [8 U.S.C 1153] in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.
Exception if additional visas available
If because of the application of paragraph (2) with respect to one or more foreign states or dependent areas, the total number of visas available under both subsections (a) and (b) of section 203 of this Act [8 U.S.C 1153] for a calendar quarter exceeds the number of qualified immigrants who otherwise may be issued such a visa, paragraph (2) shall not apply to visas made available to such states or areas during the remainder of such calendar quarter.
Special rules for spouses and children of lawful permanent resident aliens
75 percent of 2nd preference set-aside for spouses and children not subject to per country limitation
In general
Of the visa numbers made available under section 203(a) of this Act [8 U.S.C 1153(a)] to immigrants described in section 203(a)(2)(A) of this Act [8 U.S.C 1153(a)(2)(A)] in any fiscal year, 75 percent of the 2–A floor (as defined in clause (ii)) shall be issued without regard to the numerical limitation under paragraph (2).
“2–A floor” defined
In this paragraph, the term “2–A floor” means, for a fiscal year, 77 percent of the total number of visas made available under section 203(a) of this Act [8 U.S.C 1153(a)] to immigrants described in section 203(a)(2) of this Act [8 U.S.C 1153(a)(2)] in the fiscal year.
Treatment of remaining 25 percent for countries subject to subsection (e)
In general
Of the visa numbers made available under section 203(a) of this Act [8 U.S.C 1153(a)] to immigrants described in section 203(a)(2)(A) of this Act [8 U.S.C 1153(a)(2)(A)] in any fiscal year, the remaining 25 percent of the 2–A floor shall be available in the case of a state or area that is subject to subsection (e) of this section only to the extent that the total number of visas issued in accordance with subparagraph (A) to natives of the foreign state or area is less than the subsection (e) ceiling as defined in clause (ii)).
“ Subsection (e) ceiling” defined
In clause (i), the term “subsection (e) ceiling” means, for a foreign state or dependent area, 77 percent of the maximum number of visas that may be made available under section 203(a) of this Act [8 U.S.C 1153(a)] to immigrants who are natives of the state or area under section 203(a)(2) of this Act [8 U.S.C 1153(a)(2)] consistent with subsection (e) of this section .
Treatment of unmarried sons and daughters in countries subject to subsection (e)
In the case of a foreign state or dependent area to which subsection (e) of this section applies, the number of immigrant visas that may be made available to natives of the state or area under section 203(a)(2)(B) of this Act [8 U.S.C 1153(a)(2)(B)] may not exceed—
23 percent of the maximum number of visas that may be made available under section 203(a) of this Act [8 U.S.C 1153(a)] to immigrants of the state or area described in section 203(a)(2) of this Act [8 U.S.C 1153(a)(2)] consistent with subsection (e) of this section , or
the number (if any) by which the maximum number of visas that may be made available under section 203(a) of this Act [8 U.S.C 1153(a)] to immigrants of the state or area described in section 203(a)(2) of this Act [8 U.S.C 1153(a)(2)] consistent with subsection (e) of this section exceeds the number of visas issued under section 203(a)(2)(A) of this Act [8 U.S.C 1153(a)(2)(A)] ,
whichever is greater.
Limiting pass down for certain countries subject to subsection (e)
In the case of a foreign state or dependent area to which subsection (e) of this section applies, if the total number of visas issued under section 203(a)(2) of this Act [8 U.S.C 1153(a)(2)] exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(a)(2) of this Act [8 U.S.C 1153(a)(2)] consistent with subsection (e) of this section (determined without regard to this paragraph), in applying paragraphs (3) and (4) of section 203(a) of this Act [8 U.S.C 1153(a)] under subsection (e)(2) of this section all visas shall be deemed to have been required for the classes specified in paragraphs (1) and (2) of such section.
Rules for employment-based immigrants
Employment-based immigrants not subject to per country limitation if additional visas available
If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of section 203(b) of this Act [8 U.S.C 1153(b)] for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under
shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.Limiting fall across for certain countries subject to subsection (e) of this section
In the case of a foreign state or dependent area to which subsection (e) of this section applies, if the total number of visas issued under section 203(b) of this Act [8 U.S.C 1153(b)] exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b) of this Act [8 U.S.C 1153(b)] consistent with subsection (e) of this section (determined without regard to this paragraph), in applying subsection (e) of this section all visas shall be deemed to have been required for the classes of aliens specified in section 203(b) of this Act [8 U.S.C 1153(b)] .
Rules for chargeability
Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) of this section when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. For the purposes of this chapter the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that
an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) of this section for that fiscal year; (2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) of this section for that fiscal year;
an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and
an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien's birth may be charged to the foreign state of either parent.
Chargeability for dependent areas
Any immigrant born in a colony or other component or dependent area of a foreign state overseas from the foreign state, other than an alien described in section 201(b) of this Act [8 U.S.C 1151(b)] , shall be chargeable for the purpose of the limitation set forth in subsection (a) of this section , to the foreign state.
Changes in territory
In the case of any change in the territorial limits of foreign states, the Secretary of State shall, upon recognition of such change issue appropriate instructions to all diplomatic and consular offices.
Special rules for countries at ceiling
If it is determined that the total number of immigrant visas made available under subsections (a) and (b) of section 203 of this Act [8 U.S.C 1153] to natives of any single foreign state or dependent area will exceed the numerical limitation specified in subsection (a)(2) of this section in any fiscal year, in determining the allotment of immigrant visa numbers to natives under subsections (a) and (b) of section 203 of this Act [8 U.S.C 1153] , visa numbers with respect to natives of that state or area shall be allocated (to the extent practicable and otherwise consistent with this section and section 203 of this Act [8 U.S.C 1153] ) in a manner so that—
the ratio of the visa numbers made available under section 203(a) of this Act [8 U.S.C 1153(a)] to the visa numbers made available under section 203(b) of this Act [8 U.S.C 1153(b)] is equal to the ratio of the worldwide level of immigration under section 201(c) of this Act [8 U.S.C 1151(c)] to such level under section 201(d) of this Act [8 U.S.C 1151(d)] ;
except as provided in subsection (a)(4) of this section , the proportion of the visa numbers made available under each of paragraphs (1) through (4) of section 203(a) of this Act [8 U.S.C 1153(a)] is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(a) of this Act [8 U.S.C 1153(a)] , and
except as provided in subsection (a)(5) of this section , the proportion of the visa numbers made available under each of paragraphs (1) through (5) of section 203(b) of this Act [8 U.S.C 1153(b)] is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(b) of this Act [8 U.S.C 1153(b)] .
Nothing in this subsection shall be construed as limiting the number of visas that may be issued to natives of a foreign state or dependent area under section 203(a) [8 U.S.C 1153(a)] or section 203(b) of this Act [8 U.S.C 1153(b)] if there is insufficient demand for visas for such natives under sections section 203(b) of this Act [8 U.S.C 1153(b)] or section 203(a) of this Act [8 U.S.C 1153(a)] of this title, respectively, or as limiting the number of visas that may be issued under section 203(a)(2)(A) of this Act [8 U.S.C 1153(a)(2)(A)] pursuant to subsection (a)(4)(A) of this section .