25 Mar 2019 (Murthy LF)
The concept of priority dates is confusing for many. There are statutory limits to the number of foreign nationals who may be granted permanent residency (commonly, green cards) under all employment-based (EB) and most family-based (FB) categories. For these types of green card cases, priority dates are used to determine when a foreign national is eligible to file an adjustment-of-status application (form I-485). Priority dates also determine the timing for obtaining an immigrant visa through consular processing (CP). Thus, the concept of a priority date is extremely important for the vast majority of those pursuing or considering U.S. permanent residency.
Establishing the Priority DateThe priority date in an employment-based (EB) green card case requiring a PERM labor certification is the officially acknowledged date that the case is filed with the U.S. Department of Labor (DOL). If the EB case is filed in a category that does not require a labor certification, then the priority date assigned is the date that the immigrant petition (most commonly form I-140) is properly filed with United States Citizenship and Immigration Services (USCIS).
In a family-based (FB) case, the priority date is assigned based on the date that the petition for alien relative (form I-130) is properly filed with the USCIS. Note, however, that in an immediate relative case – that is, a FB case filed for the spouse, parent, or minor child of a U.S. citizen – the priority date generally is not important. This category is not subject to visa backlogs and, therefore, such a case can move forward without waiting for a visa number to become available.
Why Priority Dates are ImportantA foreign national applying for permanent residence from within the United States determines when s/he is able to file for the form I-485 based upon dates published monthly in the U.S. Department of State (DOS) visa bulletin chart. The dates listed in the visa bulletin are known as cutoff dates. These cutoff dates must be compared to an individual’s priority date to determine whether s/he may file form I-485, obtain approval of the I-485, or obtain an immigrant visa using CP.
Exceptions to the RuleThere are certain types of cases for which priority dates are not relevant. For instance, if a foreign national is sponsored for a FB case as an immediate relative, there are always visa numbers available. Immediate relatives are: spouses, parents, and minor children (under 21) of U.S. citizens.
Dual Chart System October 2015 Visa BulletinThe DOS introduced a new system for applying priority dates in the October 2015 Visa Bulletin. The visa bulletin now provides charts with separate sets of cutoff dates in both the EB and FB categories. One chart is designated as final action (FA). The dates in this chart indicate when a green card or immigrant visa actually may be approved for an applicant.
The second chart is designated as dates for filing (DF). For consular processing cases, these dates indicate “… when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.” Each month, the USCIS indicates on its website whether the DF dates can also be used as a basis for filing an I-485 application. Under this system, specified applicants are permitted to file their respective I-485s well in advance of green cards actually being available to them.
Annual Quotas and Other LimitationsAs indicated above, the reason for the visa bulletin cutoff date system is that, by law, there are annual limits on the number of foreign nationals who can become U.S. permanent residents under most immigrant visa categories. The quota is controlled by the use of visa numbers, and allocated between the EB and FB green card categories.
Both the EB and FB categories contain subcategories, known as preferences. The visa number quota is allocated further between the various preference categories, such as employment-based, first preference (EB1), employment-based, second preference (EB2), and employment-based, third preference (EB3).
Complicating matters further, there are per-country limits that cap the percentage of visa numbers that 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. Note that these per-country limits typically are based on country of birth, not country of citizenship.
As a result of these limits, individuals born in 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 less demand.
Analyzing the Visa BulletinThe FA chart dates listed for both the EB and FB categories indicate which I-485 or immigrant visa cases may be approved in a given month. If the visa bulletin chart states “C” for a given category and country, that indicates that the numbers are current in the particular category for the country of chargeability. This means that there are enough visa numbers for anyone with an approved petition in this category to either receive an immigrant visa or obtain approval of her/his pending I-485 application.
If the demand for visa numbers exceeds the available supply, the visa bulletin FA chart indicates this with a date (called a cutoff date). If the priority date of a particular case is before the cutoff date, then the otherwise qualified foreign national is eligible to receive a green card or immigrant visa during that particular month. The FA cutoff dates can also be used as a basis for filing an I-485.
In months when the USCIS indicates that the DF chart may be used for adjustment-of-status purposes, than an I-485 can be filed if the case is in a category listed as “C” for current, or if the case has a priority date earlier than the corresponding DF cutoff date. The USCIS may not approve the I-485, however, unless and until the cutoff date in the FA chart moves past the priority date for that case. Further, in months when the DF chart is not designated for use, I-485 filings can only be submitted if the priority date is earlier than the cutoff date in the (less favorable) FA date chart.
Dual Use of the Term “Current”Note that the term current technically only applies to a category listed as “C” in the visa bulletin. However, the term also is commonly used to simply indicate that a person has a case with a priority date that is earlier than the cutoff date.
Visa Bulletin Issued in AdvanceIt is always important to take note of the month for which the chart is issued. The visa bulletin is released a few weeks in advance of the month of its validity. If, for example, a given priority date is not current for September, but shows as being available in the October Visa Bulletin, then the foreign national typically will be able to file the I-485 any date between October 1st and October 31st. In this example, if the I-485 application reaches the USCIS before October 1st, either the case will be rejected by the USCIS mailroom or, if it is processed, the I-485 will be denied when the mistake is finally discovered.
RetrogressionA question often asked of attorneys at the Murthy Law Firm: What happens if the priority dates retrogress (i.e. move back) after my I-485 is filed? The same concept applies to cases filed based upon the DF chart dates, many of which are not current under the FA chart.
The USCIS reviews all filed I-485 applications, whether or not the priority date is current. The USCIS can issue a request for evidence (RFE), notice of intent to deny (NOID), or a denial, even if the priority date is not current. If the case is proper and complete, the USCIS will pre-adjudicate the case and place it on hold, awaiting the visa number availability. It is fairly common for the USCIS to issue an RFE for updated information and documentation on a case that has remained on hold for an extended period.
Incidental Benefits of Filing the I-485 Adjustment of StatusEven though the USCIS is unable to approve an I-485 until the priority date is current under the FA chart, the I-485 applicant is eligible to request important benefits that arise from this filing. These benefits include an unrestricted employment authorization document (EAD) and advance parole (“travel document”).
Additionally, EB applicants become eligible for American Competitiveness in the Twenty-First Century Act (AC21) job portability once their I-485 applications have been pending with the USCIS for at least 180 days. This allows the green card case to continue to approval based upon a qualified new job offer in the same / similar job classification as the original green card job offer.