Priority Dates Q&A

by Elizabeth Brettschneider

Once foreign nationals decide they want to stay in the United States permanently and start talking to an immigration attorney or researching the process themselves, there is a pretty good chance the term “priority date” will come up. What this term means and why it is so important to figuring out the timing involved in a Green Card case can be confusing. There are often many questions surrounding how one obtains a priority date and all the timing issues that follow. This post aims to explain how the process works, although many people may prefer not to know how the sausage is made (if you will). Tracking the backlog of cases can be painfully frustrating—especially if a foreign national’s visa category is one that is excessively backlogged. But for those who wish to know the reason behind the delays, here are some of the most frequently asked questions.

How does a foreign national get a priority date?

The answer to this question is different whether we are talking about individuals applying for a Green Card in the family-based context where a relative (such as a parent, sibling, or spouse) is the sponsor, or in the employment-based context where an employer is the sponsor. In the family-based arena, a priority date is obtained when the relative petitioner files an I-130 immigrant petition at US Citizenship & Immigration Services (USCIS) on behalf of the foreign national. The date the application is receipted in by USCIS is the priority date. It should thereafter be printed on the approval notice of the I-130 for quick reference. 

In the employment-based context, determining the priority date is a bit more complicated as it depends on what type of employment sponsorship is involved. Some people may be eligible to apply for a Green Card based on employer sponsorship or even self-sponsorship because they are a person of “extraordinary-ability” in their professional field. This type of applicant can apply in the employment-based first category (called EB-1 for short). For foreign nationals applying in the EB-1 category, their priority date is obtained on the day the first stage of their case—the I-140 immigrant petition—is filed with USCIS. Similar to family-based petitions, the day USCIS receipts in the I-140 petition is the priority date.

Statistically-speaking, most people will not be able to apply in the EB-1 category and will need to be sponsored by an employer based on that employer proving they were unable to find US workers to do the job the foreign national would do.  In this type of case, the employer will have to first file a successful labor certification application (called “PERM”) with the Department of Labor before proceeding to USCIS with the I-140 petition. The priority date for this type of application is established on the day that labor certification is filed with the Department of Labor; however, the priority date doesn’t “attach” to the foreign national until the employer’s I-140 application is subsequently approved.

Thus, if an employer files a PERM application which is approved, but an I-140 application based on the PERM is never approved with USCIS, the priority date will not be retained by that foreign national. (This may happen if the employee leaves the employer in the middle of the sponsorship process and thus that employer withdraws the I-140 petition before approval or because the employer closes their business before the I-140 is approved or simply because the I-140 is denied at USCIS.) Any employer of that foreign national (whether it is the same employer as the initial case or a subsequent employer) would need to start the entire sponsorship process from the beginning in order for a new priority date to be established and eventually attach to that foreign national.

Why do priority dates matter? How does your priority date affect timing of a Green Card issuance?

Priority dates matter because they determine where a foreign national is placed in line to wait for their Green Card adjudication. Congress has set out how many Green Cards can be given out in any fiscal year. The total number of allotted Green Cards are further subdivided between family-based petitions and employment-based petitions. Even within those classes, the allotment is further sub-divided between different preference categories—each category getting its own allotment of visa numbers. The sub-categories allocate the available Green Cards by the world’s countries and the different categories of sponsorship. (The different categories of sponsorship are discussed further below.) 

I often equate how the allotment process works to the act of going to the deli to order food. When you walk in and there is a line, the process is to grab a ticket with a number on it. You must then wait and stare up at the board that displays order numbers until it reaches the number on your ticket and the deli person then calls your number and you are allowed to step up and place your order. That number in the immigration world is the priority date. The deli worker in the immigration world is the US State Department. When the State Department “calls” a foreign national’s priority date, they can then proceed to the deli counter (here, USCIS) and finally proceed to the final stage of a Green Card application. If filing in the US, this is the Form I-485, Application to Register Permanent Residence or Adjust Status.

How does the public know which priority dates are being called by the State Department at any given time?

The availability of each type of category are illustrated in charts such as the below employment and family examples. This chart is published by the State Department each month in a “visa bulletin.” As seen in the chart below, when a date is printed in a certain category, if a foreign national’s priority date is on or earlier than the listed date, they can proceed with the final stage of their Green Card case. The “C” on the chart stands for “current” meaning that no matter what the priority date, foreign nationals in the US can submit their adjustment of status application to USCIS. A commonly referred to phrase that one might hear when going through the immigration process is that their priority date is now “current” meaning that the visa bulletin has progressed to their priority date (or there is no backlog at all for their case because the visa bulletin is listing a “C” in the foreign national’s category.)

The visa bulletin is released about two weeks before the calendar month to which it corresponds—giving everyone a heads up about what next month’s availability will be. Certain countries such as India, China, and Mexico are broken out separately from other countries in the charts. This is because there are more people from those countries immigrating to the US and thus the numbers allotted to those countries become extra backlogged.

Employment-Based Visa Bulletin

June 2018 Final Action Dates for Employment-Based Preference Cases.

June 2018 Final Action Dates for Employment-Based Preference Cases.

The employment-based preference categories represented in the chart break down as follows:

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by the first preference.      

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers."

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which are reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers.

Family-Based Visa Bulletin

June 2018 Final Action Dates for Family-Sponsored Preference Cases.

June 2018 Final Action Dates for Family-Sponsored Preference Cases.

The family-based categories represented in the chart below break down as follows:

First: (F1) Unmarried Sons and Daughters of US Citizens: 23,400 plus any numbers not required for the fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers.

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit.

B. (F2B) Unmarried Sons and Daughters (twenty-one years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of US Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult US Citizens: 65,000, plus any numbers not required by the first three preferences.

I don’t see a category for spouses of US citizens or parents of US citizens. Why?

There is no congressional limit set for those categories. Therefore, those types of sponsorship cases can be filed year-round without consideration of the visa bulletin and additional backlogs (other than the normal procedural application wait times). 

If I gained my priority date because my employer sponsored me under the employment-based third category (called EB-3 for short) but I’ve since moved employers and they wish to sponsor me for the employment-based second (or EB-2) category, will I be able to be an EB-2 or am I locked into EB-3 forever? Basically, can I move between the visa categories?

Foreign nationals are not locked in to their first visa category. If later in life a foreign national is sponsored for a different category that is more favorable in terms of the backlog, they can move to that faster category. They can even retain the priority date from their earliest filing where the priority date locked in to them—even if the first case was in a different preference category.

The PERM labor certification filed by my employer was approved. Subsequently, the I-140 was filed and approved by USCIS. My priority date has not yet become current so I have never filed an I-485 application; however, I now want to switch employers. Do I retain my priority date if I do so? Would my new employer get any benefit from my current employer’s previous efforts to get a PERM and I-140 approved?

When the I-140 filed on behalf of the foreign national is approved, the priority date attaches to that foreign national, even if they move to another employer. Once the I-140 has been approved for 180 days or more, it is not subject to automatic revocation based solely on the employer’s withdrawal or business closure.  Thus, at that point, that I-140 remains valid for the purposes of switching to a new employer and retaining the older priority date. The new employer, however, must file their own PERM and I-140 on the foreign national’s behalf. They can’t use the previous employer’s filings. The good news is that while the new employer is going through their own PERM and I-140 process on the foreign national’s behalf, the foreign national can keep their place in line since they have an older priority date. Thus, once the new employer’s I-140 is approved, the foreign national is no worse off than if they had stayed with their current employer in terms of the backlog.    

The visa bulletin for my category of country of birth and employment-based category this month is calling a date exactly two years before my priority date. This means I only have to wait another two years, right?

Not necessarily. The visa bulletin does not always move forward in a uniform way. Some months the priority date called one month after the next only moves forward by a few days. Sometimes it jumps a year forward. Sometimes it moves backwards. It is very difficult to say with any certainty when a priority date will become “current.” Just looking at one month’s visa bulletin does not give an accurate sense of the backlog because some categories statistically move very slowly. This is especially true of the F4 family-based category for siblings of US citizens and for Indian nationals in the EB-3 professional worker category. Those categories only creep forward a few days at a time each month or simply stay on the same priority date month after month. For foreign nationals in these categories, it may be particularly painful to track the visa bulletin each month waiting for their priority dates to become current. 

I have often heard the process of how the State Department choses priority dates each month equated to a gardener watering the lawn with a very long hose because they have no idea how many applicants are in the system waiting. They turn the tap on and off (moving back and forth with the priority dates) to see how much water (applicants) comes out. In other words. although the State Department is controlling the tap they cannot say how much water will come out at the end of the long hose when they turn on the tap.  

Not wishing to flood their garden they try to turn the water on just enough (moving the priority dates up) to let  a steady stream of water out (to control workflow of the Green Card applications and match visa availability monthly). If they open the faucet widely (moving too far forward in priority dates) and too much water comes out in one month (too many applicants), they don’t want to flood the lawn so next month they may turn the flow of water way down to allow the garden to dry up. If the end of the year is coming and all the visas allotted have not yet been used, they may open the proverbial hose all the way (turning a category “current”) so that all the visas can get used before the end of the year and thus no visa is wasted.

Analogously, the State Department wants to make sure every number allowed by law is allotted each physical year but they only have a vague idea about how many people may apply for the final stage of their Green Card when they call a certain priority date. Remember, in the years since someone obtained their priority date, they may have moved out of the US with no intention of obtaining a Green Card or they may have subsequently married a US citizen and obtained their Green Card through that route.

Thus when the State Department releases a certain date, they have calculated the amount of cases they think may be filed in that month but many more cases could be received than anticipated, causing the State Department to move the date back the following month. Sometimes the visa bulletin can even list a “U” meaning that Green Cards in that category are “Unavailable” for that month. This means no one can file the final stage of their Green Card in that category for the given calendar month. This can sometimes happen in September—the last month of the fiscal year, if all visa numbers allotted to that category have already been used up in the previous eleven months.  

Although I was born in China, I’ve now gained citizenship in Canada. Can I use the category for Canadians instead of China?

No, unfortunately not. A foreign national’s country of birth controls which category they will be classified in. This does not change if they gain citizenship elsewhere.

Although I was born in India, my spouse was born in the United Kingdom, does this affect how long I have to wait in line?

Yes, in a good way! There is a provision in the law called “cross chargeability” which allows a foreign national to take the country of birth of their spouse (or parent) in place of their own for visa backlog purposes. Thus, a foreign national can choose to wait in the more favorable line of their spouse (or parent) instead of their own. 

Looking at the visa bulletin is really confusing. Why are there two charts for family-based petitions and two for employment-based petitions? Which one am I supposed to look at?

You’re right, there are two charts each and it is confusing. One chart says “Final Action Dates” and the other chart says “Dates for Filing.” The “Final Action Dates” chart is the one that tells us which priority dates are “current”—meaning cases with those priority dates can be filed and adjudicated; however, the more favorable “Dates for Filing” chart controls when the Green Card applications can be filed but not immediately adjudicated. If the case is filed but the priority date isn’t yet current according to the Final Action Date chart, the case is held for adjudication until the priority date is current. Making it even more complicated, the “dates for filing” chart isn’t always available for applicants to use. USCIS has to announce each month whether it can be used. 

But why would anyone want to just file a Green Card application if it couldn’t be adjudicated yet?

The act of merely filing the final stage of a Green Card application (the I-485 adjustment of status application) comes with some interim benefits. For instance, with the filing, a person can also file for employment authorization that isn’t tied to any one employer and “advance parole” that allows them to travel internationally while the I-485 remains pending without having to obtain an additional visa from a US Embassy/Consulate (as non-immigrant visas require). These permissions are commonly granted in a “work and travel card” adjudicated approximately ninety days after filing which can be extended until the Green Card is approved.

Not only is this a benefit for the primary applicant, but since spouses and children can also apply for I-485’s along with their relative, these family members can also get these benefits of work and travel. For spouses who have previously been prevented from employment due to harsh rules disallowing lawful employment for many dependent visa types such as O-3s, F-2s, TDs, and many H-4s, this work card is often a welcome benefit to have early.

Finally, for employment-based applicants, having the I-485 filed and pending for at least 180 days can trigger another important benefit. If the beneficiary wishes to change employers this far along in the process, (after their I-140 has been approved and the I-485 has been pending for at least 180 days) they can with much less consequence. If they change to an employer in a “same or similar” job, their new employer does not need to sponsor them for the Green Card. The employee can work for their new employer with their interim work card and continue to wait in line for their Green Card to be adjudicated. 

As can be seen from the above, the system of allotting and prioritizing the way foreign nationals get their Green Cards is complicated and can result in very long wait times. We hope the information above will help the reader navigate what can be a very confusing process. There are many foreign nationals who choose not to follow their priority date each month as it’s too painful to see the slow or non-existent progress. Our firm monitors the visa bulletin so that our clients don’t have to! But for those who wish, in the very least, to understand how the process works, we hope the above has been illuminating.