Unused Numbers and Per-Country Limits: What 8 U.S.C. 1151–1153 Provide

01

Statutory Shares and Transfers Between Categories

8 U.S.C. 1153(b) provides: EB-1 receives no more than 28.6% of the worldwide employment-based level, plus numbers unused by EB-4 and EB-5; EB-2 receives no more than 28.6%, plus numbers unused by EB-1; EB-3 receives no more than 28.6%, plus numbers unused by EB-1 and EB-2; and EB-4 and EB-5 each receive no more than 7.1%.

This is consistent with the community summary that “unused EB-1 numbers flow to EB-2 and then to EB-3; unused EB-4/5 numbers flow to EB-1.” Note, however, that under the statutory text, EB-3 also directly receives numbers unused by EB-1 and EB-2, rather than receiving them only through a sequential downward flow.

02

The 7% Per-Country Limit and the Nondiscrimination Principle

8 U.S.C. 1152(a)(1)(A) provides that, except in circumstances specifically enumerated by law, no person may receive a preference or be discriminated against in the issuance of an immigrant visa because of race, sex, nationality, place of birth, or place of residence. Section 1152(a)(2) provides that any single country may not exceed 7% of the combined family-sponsored and employment-based totals in any fiscal year (2% for a dependent area).

Section 1152(a)(3) provides: If, because of the per-country limit, the family-sponsored and employment-based numbers available in a quarter exceed the number of other qualified applicants, that limit no longer applies for the remainder of the quarter.

03

Quarterly Unused Numbers: 1152(a)(5)

Section 1152(a)(5)(A) provides that if the numbers available in an employment-based category in a particular quarter exceed the number of qualified individuals to whom visas may be issued, issuance of those numbers during the remainder of the quarter is not subject to the 7% per-country limit. The official Code’s amendment notes show that this provision was added by §104(a) of Pub. L. 106-313 (AC21) in 2000.

In other words, AC21 added the rule that “unused numbers are not subject to per-country limits,” not the per-country limits themselves. The community document’s statement that “per-country limits were introduced by AC21” is a misattribution: 1152(a) was comprehensively amended by Pub. L. 101-649 in 1990, and the 7% provision predates AC21.

04

How Unused Numbers Within the Same Category Are Allocated to Countries with Waiting Applicants

When unused numbers are not subject to per-country limits, visas are issued under the statutory nondiscrimination principle and in priority-date order: whoever has the earlier priority date receives a visa first. This is consistent with the general conclusion of the community post by nekosama: within the same category, no special treatment is given on the basis of nationality.

Another community compilation (originating from “Lü Wang”) lists specific numbers of unused visas allocated to China and India in 2015 and 2018, and speculates that officials would “share the benefits evenly.” These figures are not accompanied by official sources, and “sharing evenly” is not a legal rule; this site records this only as a historical viewpoint, not as an allocation standard.

05

“Over-Issuance” Is Not the Same as the Transfer of Unused Numbers

The community term “over-issuance” refers to actual issuance in a given year that appears to exceed the per-country limit. Legally, exceeding 7% is permitted when quarterly unused-number rules or category unused-number rules apply; this site has no official data to confirm whether any particular year involved a “calculation error,” and therefore does not adopt that characterization.

06

Other Provisions Cited by the Community

Section 1101(a)(27) defines “special immigrant” (corresponding to EB-4, among others); 1151 establishes worldwide levels, with subsection (b) covering categories not subject to numerical limits (such as immediate relatives of U.S. citizens), (c) covering family-sponsored categories, and (d) covering employment-based categories; 1153 governs allocation, with subsection (a) covering family-sponsored preference categories and (b) covering employment-based categories. This community summary is consistent with the structure of the Code.