Priority Dates: How Do They Work?
The concept of priority dates is confusing for many. We take this opportunity to provide our readers with an overview of how they work. Priority dates determine when a foreign national will have the ability to file the final stage in the permanent residence (commonly referred to as the "green card") process, known as the adjustment-of-status application (Form I-485). The priority date must also be current in order to obtain permanent residence through a consular processing (CP) for an immigrant visa. Thus, the concept of a priority date is extremely important for everyone pursuing or considering permanent residency.
Establishing the Priority Date
A priority date in an employment-based (EB) case requiring PERM labor certification is the officially acknowledged date that the case was filed with the U.S. Department of Labor (DOL). If the EB case was filed in a category that does not require labor certification, then the priority date assigned is the date the immigrant petition (I-140) is properly filed with the United States Citizenship and Immigration Services (USCIS). In a family-based (FB) case, the priority date is assigned based on the date the petition for alien relative (I-130) is properly filed with the USCIS.
Why Priority Dates are Important
A foreign national determines when s/he is able to file for the I-485 by checking the dates each month in the U.S. Department of State (DOS) Visa Bulletin chart, which is published monthly and available via link from MurthyDotCom. The dates listed in the visa bulletin are known as cutoff dates. These cutoff dates determine whether the individual may file Form I-485, obtain approval of the I-485, or obtain an immigrant visa using CP.
Annual Quotas and Other Limitations
By law, there are annual limits or quotas on the number of foreign nationals who can become U.S. permanent residents. The quota is controlled by the use of visa numbers, and allocated between the EB green card categories and the FB green card categories.
Both the EB and FB categories contain subcategories known as preferences. The quota is allocated further between the various preference categories, such as EB1, EB2, and EB3. Complicating matters further, there are per-country limits that cap the percentage of the limited visa numbers which can be given to individuals from each country annually. This means that every country, no matter how large or small, is given the same maximum percentage allocation of the worldwide quota.
As a result, individuals from countries with large populations and high rates of U.S. immigration, such as India, China, Mexico and the Philippines, often experience longer wait times for visa numbers than individuals from countries with lower rates of U.S. immigration. The visa numbers that are available to a particular category, for a given country, depend upon many factors which determine the level of demand for the limited numbers. These factors include various changes in law and procedure that may create either incentives or disincentives to immigration filings in a specific time period. The levels of productivity and number of green card cases processed to approval by the USCIS, as well as the number of visas issued at the U.S. consulate abroad also play a role. The movement of the dates determines which I-485 applications can be filed during a particular visa bulletin month, as well as which green card cases and immigrant visas can be approved.
Reading the Visa Bulletin
If the visa bulletin chart states "C" for a given category and country, that indicates that the numbers are current in the specific EB category for the country of chargeability. This means that there is no waiting period for filing the I-485 application. It also means that a pending I-485 application in that category could be approved. If the demand for numbers exceeds the supply the visa bulletin chart indicates this with a date (called a "cutoff date"). If the priority date is BEFORE the date indicated, then the foreign national is eligible to file the I-485 application for adjustment of status during the particular month when the date is available. The U.S. consulate would also be able to issue an immigrant visa.
Visa Bulletin Issued in Advance
It is always important to take note of the month for which the chart is issued. The visa bulletin is released several weeks in advance of the month of its validity. If, for example, a given priority date is not current for April, but shows as being available in the May Visa Bulletin, then the foreign national will be able to file the I-485 during the month of May. If the I-485 application reaches the USCIS before May, in this example, the case will either be rejected by the mailroom or, if it is processed, the I-485 will be denied when the mistake is discovered.
A question that the Murthy Law Firm is often asked is: What happens if the priority dates move back or retrogress after my I-485 is filed?
If the I-485 application is filed when the dates are current, but the visa bulletin date then goes backward - or retrogresses - to a date prior to the individual's priority date, the I-485 must wait until the priority date is current again in order to be eligible for approval.
The USCIS reviews I-485 applications even if the priority date is not current. If there are problems with the case, a request for evidence (RFE), notice of intent to deny (NOID), or a denial could be issued. If the case is proper and complete, the USCIS will place it on hold and, unless something changes for the worse in the case, it should be approved once a visa number becomes available.
It should be clear that visa numbers and the visa bulletin are extremely important in the green card process. One must have a basic understanding of the meaning and function of priority dates and the visa bulletin in order to make a number of important decisions. Information about the visa bulletin, including any reliable predictions and other developments, is always made available on MurthyDotCom.
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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.