September 15, 2015

Priority Dates – How Do They Work?

Understanding Priority Dates is essential to successfully completing the immigration process and obtain permanent resident (“green card”) status. The PD system is confusing thus determining when to file the final stage in the green card process can be challenging. We hope that with the following information you can better understand this system and make informed decisions that will allow you to effectively manage your immigration process.

What is a Priority Date

Priority date is a immigration concept – it is the official date when an immigrant petition is originally (“first”) filed with the US Government. The date establishes one’s place in the queue for permanent residency or “green card”.

How to Establish a Priority Date

Establishing a priority depends on the type of immigration process used to obtain permanent residency (“green card”). There are two categories to obtain green card: Employment-Based (EB) and Family-Based (FB).

For EB petitions, the priority date is established based upon the process selected for obtaining green card. In general, there are two options:

  1. EB petitions requiring PERM labor certification – the priority date is established the date the United States Department of Labor receives a labor certification application.
  2. EB petitions NOT requiring PERM labor certification – the priority date is established the date the immigrant petition (I-140) is properly filed with the USCIS

For FB petitions, the priority date is established the date an immigration petition for alien relative (I-130) is properly filed with the USCIS.

In all cases, the USCIS must approve the immigrant petition for the priority date to be established (“attached”).

Why Priority Dates are Important

The priority date is fundamental in determining when a foreign national will be able to apply for permanent residence and obtain a green card. Filing for green card can be based on a petition for Adjustment of Status (I-485), if the foreign national is already living in the U.S., or an Immigrant Visa application (DS260) at the US consulate in the foreign national’s home country (Consular Process or CP).

In order to be able to apply for a green card (I-485 or DS260), the priority date must be current. The priority dates are listed on the U.S. Department of State (DOS) website’s Visa Bulletin and are updated monthly. To determine when the priority date is current, one must check the dates in the Visa Bulletin.

The Visa Bulletin

The Visa Bulletin is published monthly by the Department of State. The dates listed in the Visa Bulletin are known as “cutoff dates”. These dates determine whether an individual may file the I-485 petition, obtain approval of the I-485, or obtain an immigrant through the CP process.

The visa bulletin is released several weeks in advance of the month of its validity. 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 will be able to file the I-485 during the month of October. It is important to file the I-485 application when the priority date is current (October in this example) because if the I-485 petition reaches the USCIS before it is current, the petition will either be rejected or, if it is processed, it be denied when the mistake is discovered.

By law, there are annual limits or quotas on the number of immigrant visas that the government can issue every year. 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.

Starting October 2015, there will be two (2) important dates listed on the monthly Visa Bulletin: the “filing date,” which determines when individuals can submit their permanent residence applications, and the “final action” date, which determines when the Department of State or USCIS can make a decision on the applications.

If the immigrant has a “priority date” earlier than the listed “filing date” for their particular visa category and country, they will be able to file their applications for permanent residence earlier than they would have been allowed under the old process. However, they will still have to wait for the “final action” date to become current before permanent residence can be approved.

Retrogression

Often the Priority Dates move back or regress after being current. For example, if the priority date is current in October and you file your petition and in the month of November the cutoff dates go backwards, the USCIS will place the I-485 petition on hold and, unless a material change that may affect the petition, until your priority date is current again.

Conclusion

Visa availability and the visa bulletin are key in the green card process. People going through the green card process must clearly understand how priority dates work and how to interpret the visa bulletin so that critical decisions are made timely.

If you are not sure about the applicability of the visa bulletin or whether the priority affects your immigration process, please feel free to contact us.

Angela M. Lopez
Shareholder
alopez@cowlesthompson.com
214.672.2162