Priority Dates : How Do They Work?
Posted Mar 18, 2000

Some of you, understandably,  maybe confused by the concept of Priority Dates and we take this opportunity to provide you with an overview of how they work. Priority Dates determine when a foreign national will have the ability to file the final stage of the application for the green card (GC), known as the Adjustment of Status or I-485 application. The advantage of filing the I-485 at the earliest opportunity is that it allows the foreign national and any immediate family members the opportunity to file for the EAD or the employment authorization document (permission to work without having to maintain a temporary worker status such as H1B) and Advance Parole (permission to reenter the U.S. after travel abroad while the I-485 is pending). The priority date must also be considered for consular processing (CP) filings.

A priority date, in an employment-based (EB) case requiring Labor Certification (LC), is the officially acknowledged date that the case was filed at the state level Department of Labor office, referred to as the SESA. If the EB case was filed in a category that does not require labor certification, then the priority date assigned by the INS is the date the I-140 (Immigrant Visa Petition) is received by the INS Service Center.

A person determines when s/he will be able to file for the I-485 by checking the dates each month on the Visa Bulletin chart. Every month, the U.S. Department of State publishes the Visa Bulletin which is posted promptly and available at our website, MurthyDotCom. The Visa Dates indicate whether the dates are current or whether there is a backlog in order to file for the Adjustment of Status or CP.

By law, there is a quota or limit to the number of people who can receive a green card (GC) in a given year. This quota is based both on the employment-based category (EB1, EB2, or EB3, etc.) and on "per country" limits, meaning that every country, no matter how large or how small, is given the same maximum percentage allocation of the worldwide quota. Countries like China and India with large populations are then subject to longer waiting times than a person born in a neighboring country like Pakistan or Nepal. The number of spaces (sometimes referred to as "visa numbers") for a particular country, that are available at any given time, will depend on various factors, for example, how many immigrant visas have been approved at consulates abroad, how many I-485 applications have been approved for persons from that country in the U.S. during the prior month, etc. Such factors determine the movement of priority dates and, in turn, will affect the number of I-485 applications that can be filed during the following month after the priority dates are released.

If the Visa Bulletin chart states "C" for a given category and country, that indicates that the numbers are current in the specific employment-based category, whether EB1, EB2, or EB3, and that there is no waiting period for filing the I-485 application. If the numbers are backlogged as indicated on the Visa Bulletin, there will be a date (sometimes called a "cut-off date") mentioned. 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 dates are current.

(IMPORTANT : Please take note of the month for which the chart is issued. The Visa Bulletin is released about 2 weeks in advance. If, for example, the Priority Date is not current for April of this year, but when the May dates are issued in mid-April the chart shows that the date will be current for May of this year, then the foreign national will be able to file the I-485 during the month of May. If the I-485 application reaches the INS early, say on April 30, when the dates only become current in May, the case will either be rejected by the mailroom or, if it is processed, the I-485 may be denied one or two years later – merely for filing a day too early!)

A question that we at The Law Office of Sheela Murthy are often asked is: What happens now that the Priority Date will regress for my application?

If a person has already filed the I-485 application when the dates were current, but then the Visa Bulletin date retrogresses to a date before the priority date, the foreign national would still accrue the benefit of being able to remain in the U.S. with renewable EAD or work authorization and permission to travel, even after completing the six years on H1B status in the U.S. However, the I-485 could not be approved until the date again becomes "current."

[Article updated February 3, 2003.]