Visas and the queue
Backlog
Also called queue, waiting line, visa backlog.
Backlog is the demand already waiting ahead of an investor in the same visa category, the same country of chargeability and, since the 2022 set-asides, the same reserved or unreserved pool, which must be worked through before a visa number reaches them.
What it decides
Backlog describes a condition and is not a statutory term. The statute's own word is "waiting lists," at 8 U.S.C. 1153(e)(3), which leaves them to regulations prescribed by the Secretary of State. A backlog forms because supply is capped and demand is not. 8 U.S.C. 1151(d) sets the worldwide employment-based level at 140,000 a year plus a carryover of unused family-sponsored numbers. 8 U.S.C. 1153(b)(5)(A) gives EB-5 a number not to exceed 7.1 percent of that level. 8 U.S.C. 1152(a)(2) separately caps natives of any single foreign state at 7 percent of the combined family-sponsored and employment-based preference total for the year, not 7 percent of each category. Within whatever supply results, 8 U.S.C. 1153(e)(1) requires visas to issue "in the order in which a petition in behalf of each such immigrant is filed." USCIS states the outcome directly: "When the demand is higher than the supply of visas for a given year in any given category or country, a visa queue (a waiting list or backlog) forms." The Department of State publishes the resulting cut-off dates each month in the Visa Bulletin. Two charts run side by side and they answer different questions. Final Action Dates governs when a visa number is actually available and a case can be approved. Dates for Filing governs only when an application may be submitted. Reading the Dates for Filing chart as the length of the wait understates it. EB-5 is not a single queue. 8 U.S.C. 1153(b)(5)(B)(i)(I) reserves, out of the EB-5 allocation rather than out of all employment-based visas, 20 percent for investment in a rural area, 10 percent for a designated high unemployment area and 2 percent for infrastructure projects, which leaves 68 percent unreserved. The Visa Bulletin lists the unreserved category and each set-aside separately, and an investor waits against demand in their own pool and chargeability area, not against every EB-5 filing. The unreserved 68 percent carries the oldest and heaviest demand. Under 8 U.S.C. 1153(b)(5)(B)(i)(II), reserved visas left unused at the end of a fiscal year stay available within the same category for the immediately succeeding fiscal year.
Where this is explained properly
Pages here that go into backlog rather than mentioning it.
Related terms
- Country of chargeabilityCountry of chargeability is the foreign state against whose per country visa ceiling an applicant is counted, set by place of birth rather than by citizenship, passport or current residence, subject to four narrow exceptions.
- Per country limitThe 7 percent ceiling, in 8 U.S.C. 1152(a)(2), on the family and employment preference immigrant visas that natives of any single foreign state may receive in a fiscal year. It is measured against the family and employment preference totals combined rather than against each category separately, and dependent areas get 2 percent.
- Cross-chargeabilityCross-chargeability is the rule that charges an applicant's immigrant visa to a spouse's or a parent's country of birth instead of their own, so that a family facing different per-country queues is not separated.
- Adjustment of statusAdjustment of status is the process under 8 U.S.C. 1255 by which someone already in the United States becomes a permanent resident without leaving, on Form I-485, instead of collecting an immigrant visa at a consulate abroad. An EB-5 investor who adjusts is granted conditional permanent residence for two years, the same status a consular applicant receives on admission.
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