Tag Archives: Visa Bulletin

Priority Date Recapture and Retention in Family-Based Immigration

Family-based immigration can take many years to complete due to slow processing times, huge backlogs, and the limited number of visas available in the family-sponsored, preference categories.

The priority date marks the immigrant visa/green card applicant’s place in the visa queue.  Being able to recapture and retain an old priority date from a previously filed petition in a new petition makes a big difference.

The priority date is when USCIS received the Form I-130, Petition for Alien Relative, from the U.S. citizen or permanent resident petitioner on behalf of the beneficiary.

During the process, certain changes in family circumstances may lead to complications, delays, and even termination of the case. An example is when an unmarried son of a U.S. citizen petitioner marries or when a minor child beneficiary turns age 21 before he immigrates.

Some situations involve automatic conversion from one preference category to another, where the old priority date is kept.  Others require the filing of a new, I-130 immigrant petition, which might not allow priority date recapture and retention.

Family-Sponsored, Preference Categories

There is no limit on the number of immigrant visas/green cards available to immediate relatives.  An immediate relative is the spouse or unmarried, minor child (under age 21) of a U.S. citizen, as well as the parent of an adult U.S. citizen (age 21 or older).

Family-sponsored, preference categories, however, have a maximum number of visas available each fiscal year.  Congress allocates visas to each preference category as follows:

First: (F1) Unmarried Sons and Daughters, age 21 or older, of U.S. Citizens:  23,400 plus any numbers not required for 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 Unmarried Children, under age 21, 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 (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

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

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

Priority Date

Immigrant visas or green cards may be issued in family-sponsored, preference categories only when the priority date is current.

A priority date is current if the I-130 petition was filed before the cut-off date listed in the U.S. Department of State’s monthly Visa Bulletin for that category. The Visa Bulletin lists two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).

AFADs are the cut-off dates that determine when an immigrant visa becomes available to Form DS-260, Immigrant Visa applicants or Form I-485, Adjustment of Status (green card) applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart was first introduced in the October 2015 Visa Bulletin. DFAs are the cut-off dates that determine when Immigrant Visa applicants – depending on their priority date, preference and category – should receive notice from the DOS’ National Visa Center (NVC) instructing them to submit their documents for consular processing. Each month, USCIS also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing I-485 applications.

Automatic Conversion of Preference Categories 

While a family-based immigration case is pending, beneficiaries may move from one category to another, or lose immigrant visa eligibility altogether, due to changes in circumstances.

Federal regulations at 8 CFR 204.2(i) provide for automatic conversion from one family-sponsored, preference category to another, and allow for recapturing and retention of the old priority date in the following situations:

Preference Category Situation in which petition is automatically converted and old priority date is recaptured and retained

 

Immediate Relative/IR

Unmarried, minor child (under age 21) of U.S. citizen

 

Child marries: convert from Immediate Relative/IR to Third Preference/F3

 

Child turns age 21 and is not protected by the Child Status Protection Act (CSPA): convert from Immediate Relative/IR to First Preference/F1

 

First Preference/F1

Unmarried adult son or daughter (age 21 or older) of U.S. citizen

Son or daughter marries: convert  from First Preference/F1 to Third Preference/F3
Second Preference A/F2A

Minor child (under age 21) of permanent resident

Petitioner becomes a naturalized U.S. citizen while child is under age 21: convert from Second Preference A/F2A to Immediate Relative/IR. NOTE: A new I-130 petition must be filed in the Immediate Relatives category if the child was listed only as a derivative beneficiary in an I-130 petition for the petitioner’s spouse, and is not already a principal beneficiary of an-130 filed by petitioner.

 

Petitioner becomes a naturalized U.S. citizen after child, who is protected by CSPA, turns 21: convert from Second Preference A/F2A to First Preference/F1.  NOTE: If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.  The petitioner may refrain from applying for naturalization to prevent adverse effects on the child.

 

Child turns 21 and is not protected by CSPA: convert from Second Preference A/F2A to Second Preference B/F2B

Second Preference B/F2B

Unmarried adult son or daughter ( age 21 or older), of permanent resident

Petitioner becomes a naturalized U.S. citizen: convert from Second Preference B/F2B to First Preference/F1. NOTE: If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.

 

Third Preference/F3

Married son or daughter of U.S. citizen

Son or daughter divorces: convert from Third Preference/F3 to Immediate Relative/IR (if under age 21) or to First Preference/F1( if 21 or older)

 

In most cases, no new I-130 petition has to be filed when automatic conversion applies. The petitioner just has to notify USCIS, the National Visa Center or the U.S. Consulate of the conversion.

Priority Date Recapturing or Retention

Generally, an earlier priority date may be recaptured and retained if it is the same petitioner filing for the same beneficiary (including derivative beneficiaries) and the prior I-130 was not terminated or revoked.

Beneficiary Gets Married

Marriage of the beneficiary leads to automatic conversion in certain situations. For example, if an unmarried, minor child (under age 21) of a U.S. citizen marries, the petition is automatically converted from the Immediate Relatives to F3 category, but the original priority date is kept.

If an unmarried adult son or daughter (age 21 or older) of a U.S. citizen marries, the petition is automatically converted from the F1 to to F3 category, but the original priority date is kept.

In contrast, if an unmarried child (under age 21) of a permanent resident (F2A category) or  unmarried adult son or daughter (age 21 or older) of a permanent resident (F2B category) marries, the petition is automatically revoked or terminated as a matter of law because there is no category for permanent residents to file for married children. Even if the child/son/daughter divorces, he or she cannot regain the status of a F2A or F2B preference because the I-130 was revoked.  An annulment, however, might serve to reinstate the second preference status.

If the permanent resident parent becomes a U.S. citizen and then files a new petition for the child/son/ daughter in the F3 category, a new priority date will apply and the old priority date cannot be recaptured.

Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by CSPA

INA § 203(h)(3) states that if a child “ages out” (turns age 21) and is not covered by age-out protections under the Child Status Protection Act (CSPA), the petition for him or her will be automatically converted to the appropriate preference category.

Eligibility criteria for CSPA include:

  • Beneficiary must have a pending or approved visa petition on or after August 6, 2002
  • Beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
  • Beneficiary must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of an adjustment/green card application or immigrant visa application. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the I-130 petition was approved, whichever is later.

A CSPA formula is used to determine the child’s “CSPA age.” USCIS will take the child’s age at the time an immigrant visa number became available and deduct the time the I-130 petition was pending from the child’s age. If the result is less than 21 years of age, he keeps the same preference category provided he seeks to acquire permanent residence within one year of  when an immigrant visa or green card becomes available.

When the minor child of a U.S. citizen turns 21 and is not protected by CSPA, he or she is converted from the Immediate Relative to F1 category.

When the minor child of a permanent resident turns 21 and is not protected by CSPA, he or she is converted from the F2A to F2B category.

Derivative Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by CSPA

A derivative beneficiary includes a minor child (under age 21) of a principal beneficiary of an I-130 petition. When the derivative child turns 21 and “ages out,” the child is no longer eligible to immigrate as a derivative beneficiary of the I-130 petition for her parents. Therefore, a new petition must be filed for the former derivative child as the principal beneficiary.

INA § 203(h)(3), regarding the retention of priority dates, states, “If the age of an alien is determined [by the CSPA calculator] to be 21 years of age or older for the purposes of [retaining status as a derivative beneficiary in the preference categories], the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

In a 2009 case, Matter of Wang, the BIA found that while the language in section 203(h)(3) is ambiguous, Congress intended for priority dates to be retained only when the same petitioner filed a second petition for the same beneficiary. The BIA held that retention of the old priority date was “limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident.” The BIA found § 203(h)(3) did not apply to derivative beneficiaries in other categories.

Matter of Wang interpreted INA § 203(h)(3) narrowly, holding that the priority date may only be retained if the second preference petition is filed by the same petitioner. The case involved a beneficiary from China whose LPR parent filed a petition for him in the F2B category. He had a petition previously filed on his behalf by his brother under the F4 category. He sought to recapture the old priority date under the F4 category. But the BIA held he could not recapture the original priority date because the petition under the F2B category required a different petitioner and sponsor than the original petition under the F4 category.

In its June 2014 decision in Scialabba v. Cuellar de Osorio, the U.S. Supreme Court agreed with the BIA’s holding. The Supreme Court read section 203(h)(3) to allow only derivative children of beneficiaries of F2A petitions (for spouses and children of permanent residents) to retain the priority date of their parent’s original petition.

The Supreme Court’s decision supersedes earlier appellate court holdings, such as Khalid v. Holder, in which the Fifth Circuit Court of Appeals rejected Matter of Wang and held that the CSPA priority date retention applies to all petitions where derivative beneficiaries may “age out,” not just to second-preference petitions.

To recapture the priority date, the new petition must be filed by the same, original petitioner. The priority date cannot be recaptured in a situation like in Matter of Wang, where the original petitioner was a U.S. citizen brother and the second petitioner was a permanent resident father. The rule set forth in Matter of Wang, and upheld by the U.S. Supreme Court in Scialabba, limits situations in which a priority date may be recaptured in a new I-130 filing.

Derivative beneficiaries under any other preference category besides F2A may not retain the priority date of the petition where their parents were principal beneficiaries. These other derivative beneficiaries include the children of unmarried sons and daughters of U.S. citizens (First Preference/F1); the children of unmarried sons and daughters of permanent residents (Second Preference B/F2B); the children of married sons and daughters of U.S. citizens (Third Preference/F3); and the children of siblings of U.S. citizens (Fourth Preference category, F4).

Scenario 1Maria is the principal beneficiary of an I-130 petition filed by her permanent resident spouse, Thomas, in the F2A (spouse of permanent resident) category. Maria’s daughter, Ana, is included in the petition as a derivative beneficiary. But Ana ages out (turns age 21) and may no longer follow to join the principal beneficiary.

The original petitioner, Thomas, then files an I-130 petition for Ana in the F2B (adult, unmarried daughter of permanent resident) category. Ana may recapture the old priority date because she was the derivative of an F2A beneficiary.

Scenario 2: Maria is the principal beneficiary of an I-130 petition field by her U.S. citizen brother, Joaquin, in the F4 (sister of adult U.S. citizen) category. Maria’s daughter, Ana, is included in the petition as  a derivative beneficiary. But Ana ages out (turns age 21) and can no longer follow to join the principal beneficiary.

The original petitioner, Joaquin, may not file an I-130 petition for Ana because there is no category for nieces of a U.S. citizen. Ana’s now permanent resident mother, Maria, then files an I-130 petition for her in the F2B (adult, unmarried daughter of permanent resident) category. Ana may not recapture the old priority date because she was the derivative of an F4 beneficiary.

Ana’s immigration process will be delayed more in Scenario 2 because, unlike in Scenario 1, she cannot retain the priority date of the parent’s original I-130 petition. Because she has aged out, she needs to have a new I-130 petition with a new priority date filed for her.

Petitioner Naturalizes

When a permanent resident petitioner becomes a naturalized U.S. citizen, he may request an upgrade of his I-130 petition for his spouse from the F2A to Immediate Relatives category. But if he did not file an I-130 petition for his minor child (under age 21), and simply listed him as an F2A derivative beneficiary on the I-130 petition for his spouse, he will need to file a new I-130 petition for the child in the Immediate Relatives category. The old priority date may be recaptured to help the child immigrate earlier with the spouse.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for a minor child who turns 21, but is protected by CSPA, will convert from the F2A to F1 category. If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for a an unmarried son or daughter (age 21 or older) will convert from F2B to F1 category. If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.

Conclusion

The priority date (i.e. the date the I-130 petition was filed with USCIS) determines when you may immigrate to the United States or adjust to permanent resident status.

Determining whether a beneficiary or derivative beneficiary is protected by CSPA after aging out (turning 21) is complicated. Seeking to recapture and retain an earlier priority date to reduce immigration delays can be tricky.

Consult an experienced immigration attorney to fully evaluate your situation, including whether CSPA applies or whether an old priority date may be recaptured and retained.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Kevin Haggerty

 

Changes to the Visa Bulletin: Understanding the Two Filing Charts

queue

On October 1, 2015, the U.S. Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).  The Bulletin revisions are meant to improve the backlog in the family-sponsored preference and employment-sponsored preference categories, where the demand for immigrant visas can – and often do – exceed the supply each year. In some categories, the wait for a visa to become available is as long as 5 to 10+ years.

Advantages with the New System

The priority date marks the applicant’s place in the visa queue. In the family-based categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

In employment-based categories, it’s the date the U.S. Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the Form I-140, Immigrant Petition for Alien Worker (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).

The AFAD chart is consistent with previous Visa Bulletins under the old system. AFADs are the cut-off dates that determine when an immigrant visa becomes available to Form DS-260, Immigrant Visa applicants or Form I-485, Adjustment of Status applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart is part of the new system and was first introduced in the October 2015 Visa Bulletin. DFAs are the cut-off dates that determine when Immigrant Visa applicants – depending on their priority date, preference and category – should receive notice from the DOS’ National Visa Center (NVC) instructing them to submit their documents for consular processing.

Each month, U.S. Citizenship & Immigration Services (USCIS) also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing their I-485 applications. Current information is posted on the USCIS website at www.uscis.gov/visabulletininfo. When USCIS finds there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that I-485 applicants may use the DFA chart in the Visa Bulletin.

The DFAs are later than the AFADs, by as much as one year or so, as shown in the November and December 2015 Visa Bulletins. Example: In the December 2015 Visa Bulletin, the DFA for the family-sponsored, second preference, F2A category is March 1, 2015 (“01MAR15”). Meanwhile, the AFAD for this same category is June 15, 2014 (“15JUN14”). If the applicant’s priority date is April 30, 2015, or otherwise earlier than the DFA, he may file the I-485 with USCIS in December 2015, even though an immigrant visa is not yet available. Under the old system, the applicant’s priority date must have been June 14, 2014, or otherwise earlier than the AFAD, before he could file the I-485 in December.

The new system allows Immigrant Visa applicants and sometimes Adjustment of Status applicants to get a head start on filing for permanent residence. They may apply for an immigrant visa or adjustment of status even before their priority dates become current and a visa actually becomes available to them, as shown in the AFAD chart.

When the Immigrant Visa applicant’s priority date is earlier than the cut-off date in the DFA chart, he may submit required documents to the NVC, following receipt of notice containing filing instructions.

If USCIS determines the DFA chart may be used in a particular month, it will accept I-485 adjustment applications when the applicant’s priority date is earlier than the cut-off date in the DFA chart. Applicants with pending I-485s may also file for and receive an employment authorization document (EAD) and advance parole (travel document).

Those who are stuck in the employment-based backlog have greater job mobility with an EAD that is based on a pending I-485. In particular, once an employment-based I-485 application is pending 180 days or more, “portability” rights generally allow the individual to change employers, as long as the new job is in the same or a similar occupation.

Limitations of the New System

Unless otherwise stated on the USCIS website, individuals seeking green cards within the U.S. must normally use the AFAD chart for determining when they may file their I-485 applications. When USCIS finds there are fewer immigrant visas available for the fiscal year than there are known applicants for such visas, I-485 applicants must use the AFAD chart, instead of the DFA chart, to file their applications.

All applicants still have to wait for the AFAD to become current before the green card or immigrant visa can be issued.

USCIS will not adjudicate or approve the I-485 until the priority date becomes current or is earlier than the cut-off date in the AFAD chart. Even if the applicant filed early under the DFA chart, it could be another year or so before he receives an I-485 decision or green card. A final decision on Immigrant Visa applications also cannot be taken until the AFAD becomes current.

When applicants file their I-485 or Immigrant Visa application early under the DFA chart, material changes may occur while they are waiting for the AFAD to become current. They might get arrested, charged and convicted of a crime that affects their eligibility for a green card. Waivers are available for only certain criminal-related grounds of inadmissibility in only some cases.

Furthermore, failure to report material changes in one’s case to USCIS or the U.S. Consulate may be construed as fraud or willful misrepresentation to gain immigration benefits. This is a lifetime bar to obtaining permanent residence. Fraud/misrepresentation waivers are available only to applicants with a U.S. citizen or permanent resident spouse or parent who would suffer extreme hardship if the applicant was not admitted to the U.S.

Generally, all I-485 applicants must submit a Form I-693, Report of Medical Examination and Vaccination Record, completed by a designated U.S. civil surgeon. A completed Form I-693 is valid for only 12 months from the time it is submitted to USCIS. Applicants must also submit the Form I-693 to USCIS within one year of the immigration medical examination.

If the Form I-693 is filed with the I-485 under the DFA chart, it may expire by the time the AFAD is current and USCIS can issue a final decision on the I-485. To avoid re-doing the immigration medical examination, I-485 applicants might want to wait until receiving a Request for Evidence (RFE) or until the I-485 interview to submit the Form I 693.

The revised procedures in the Visa Bulletin does not change eligibility requirements for I-485 and Immigrant Visa applicants. For example, individuals must still be in lawful nonimmigrant status (e.g. H-1B or F-1) when they file an I-485 application in the family-sponsored or employment-based category. Those who are out of status in the U.S. normally do not qualify for adjustment of status. Instead, they must depart the U.S. to apply for an immigrant visa.

If they depart the U.S. after accruing more than 180 days to less than 1 year of unlawful presence, they trigger a 3-year bar to re-entry. The bar is 10 years if the unlawful presence lasted 1 year or more. To be excused from the 3/10 year bar so they may obtain an immigrant visa before the 3/10 years pass, they must apply for and receive an I-601 waiver. Getting the waiver requires them to show a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted to the U.S.

A pending I-485 generally provides “authorized stay” even if the person falls out status – as long as the I-485 is non-frivolous and was timely and properly filed with USCIS. But when possible, it is best to maintain or extend lawful nonimmigrant status (e.g. H-1B or L-1) until USCIS approves the I-485. Failure to maintain status leaves the person with no safety net if USCIS later decides to deny the I-485 or revoke the approval of the underlying visa petition.

The Visa Bulletin Matters to Green Card Applicants in the Family-Sponsored and Employment-Based Preference Categories, But Not to Immediate Relatives of U.S. Citizens 

The Immigration and Nationality Act (INA) limits the number of immigrant visas that may be issued, each year, to foreign nationals seeking to become lawful permanent residents in the family-sponsored and employment-based preference categories. Visas in these preference categories are not always available.

When demand exceeds supply of visas for a given year in a given category or country, a visa queue (backlog) forms. The DOS distributes the visas based on the applicant’s priority date, preference category, and country of chargeability.

When the priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, prospective immigrants can receive a final decision on their I-485 or immigrant visa applications.

If the Visa Bulletin shows “U” in a category, immigrant visas are temporarily unavailable to all applicants in that preference category and/or country of chargeability.

Immigrant visas for “immediate relatives” of U.S. citizens, however, are unlimited. An immigrant visa is always available to:

  • Spouses of U.S. citizens
  • Unmarried, minor children (under age 21) of U.S. citizens
  • Parents of adult U.S. citizens (age 21 or older)
  • Widows or widowers of U.S. citizens if the U.S. citizen filed a Form I-130 immigrant petition before his or her death or if the widow(er) files a Form I-360, self-petition within 2 years of the citizen’s death

When Possible, It’s Better to File When the DFA Is Current, Instead of Wait for the AFAD to Become Current

You don’t have to file your I-485 or Immigrant Visa application when the DFA is current. But there are several advantages to getting an early start. Filing under the DFA chart helps to ensure cases are ready to be approved when the AFAD becomes current.

Like AFADs, DFAs can roll back instead of move forward. Still, filing early provides some protection against visa retrogression. This is when a priority date that is current one month will not be current the next month, or the cut-off date will move backwards to an earlier date. Visa retrogression occurs when the visas have been used up or is expected to run out soon in the fiscal year. A new supply of visa numbers become available at the start of the fiscal year, October 1, but the priority dates might still take a while to return to where they were before retrogression.

While the new system does not involve any substantive changes in immigration law, it includes procedural changes that help to ease the backlog and provide some advantages to prospective immigrants.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Xiaojun Deng

Priority Date: Current, Retrogressed, or Doesn’t Matter?

Immigrating to the United States can be a long, slow process that lasts several years (decades, in some cases).

The other day, a U.S. citizen called to ask me whether he could file an immigrant petition for his adult brother, who is 52 years old. I said yes, but based on current processing time, it could be well over 12 years before his brother gets an immigrant visa to enter the U.S. as a permanent resident.

Why would it take so long? 

A big reason is that Congress limits the number of persons who may immigrate to the U.S. each year. The time you must wait for an immigrant visa depends on the annual limit in your visa category, the number of applicants, and your priority date.

The one visa category that does not have an annual limit are immediate relatives of U.S. citizens.

What is my priority date?

Your priority date is the date you began your green card process.

In family-based immigration, it’s the date that U.S. Citizenship & Immigration Services (USCIS) received the Form I-130, Petition for Alien Relative.

In employment-based categories, it’s the date that the U.S. Department of Labor (DOL) received the application for alien labor certification or the date that USCIS received the Form I-140, Immigrant Petition for Alien Worker (if no alien labor certification is required).

When may I file for my green card or my immigrant visa? 

Immediate Relatives

There is no annual limit or waiting period in the immediate relatives category. Immigrant visas are always available to:

  • The spouse or minor child of a U.S. citizen.
  • Parent of a U.S. citizen who is age 21 or over.
  • Step-parent or step-child of a U.S. citizen (if the step-parent, step-child relationship began before the child’s 18th birthday).
  • The spouse of a deceased U.S. citizen (if the spouse was married to the deceased U.S. citizen for at least two years and the application for permanent residence was filed within two years of the death of the U.S. citizen).

But if you’re in a preference category with annual limits, your priority date determines when you may apply for a green card or an immigrant visa. These categories are as follows:

Family-Sponsored Preferences 

First: (F1) Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for 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, and any unused first preference numbers:

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

B. (F2B) Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

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

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

Employment-Based Preferences

First: (EB1) Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: (EB2) 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 first preference.

Third: (EB3) 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”.

Schedule A Workers: Employment First, Second, and Third preference Schedule A applicants are entitled to up to 50,000 “recaptured” numbers.

Fourth: (EB4) Certain Special Immigrants, such as Religious Workers: 7.1% of the worldwide level.

Fifth: (EB5) Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers.

Visa Bulletin

The U.S. Department of State (DOS) publishes a monthly Visa Bulletin to show the availability of immigrant visa numbers in each family category and employment category. Each category with annual limits usually has a cut-off date.

There are also limits on the number of immigrant visas that can be granted each year to persons from any one country. These limits are not based on citizenship, but on the “country of chargeability,” which is usually the country where you were born. You might be able to claim a different country, such as the country where your spouse was born.

If the Visa Bulletin  shows “C” for a category and country, this means the visa numbers are current and there is no waiting period.  If the demand for visas exceeds the supply, the Visa Bulletin shows a cut-off date.

Is your priority date current?

Your priority date must be current for you to file your Form I-485, Application to Register Permanent Residence or to Adjust Status (if you are in the U.S. and you are eligible for a green card), or apply for an immigrant visa at your U.S. Consulate (if you are outside of the U.S.)

If visa numbers are current or your priority date is earlier than the cut-off date, you may file your Form I-485 or immigrant visa application (assuming USCIS approved the immigrant petition). You may be scheduled for an interview and get your green card or immigrant visa only when your priority date is current.

File your Form I-485 application or apply for consular processing as soon as your priority date is current. If you are in the U.S. and qualify for adjustment of status, you submit the I-485 to USCIS, which will send you a green card interview notice.  If you are living overseas, the National Visa Center (NVC) will issue instructions to begin consular processing.

Has your priority date retrogressed? 

The priority dates may retrogress (move backward). So, even if your priority date is current this month, it could move backward the next month.

If the priority date retrogresses after you file your Form I-485 application or after you begin consular processing, your case cannot be approved until the priority date becomes current again.

USCIS may issue a request for evidence (RFE), a notice of intent to deny (NOID), or a denial during this waiting period. Or USCIS will place your case on hold and approve it only after an immigrant visa becomes available again.

How do I know when an immigrant visa number is available to me?’

If you are in the family-sponsored preference or employment-based preference category, you must track the Visa Bulletin to know whether your priority date is current.

The Visa Bulletin looks backward, not forward. For example, in the November 2014 Visa Bulletin, the cut-off date is “08JUL94” for Mexican-born applicants in the family-sponsored, F-1 category. This means the I-130 petition had to be filed 20 years ago (on or before July 8, 1994) for an immigrant visa to now be available.

That’s a LONG WAIT! And as demand continues to exceed supply, the waiting period could be much longer if the petition is filed today.

The monthly Visa Bulletin is available on the DOS website. You may also call the DOS at (202) 663-1541 for a 24-hour recording that gives the priority dates that are currently being processed.

If you’re an immediate relative of a U.S. citizen, you don’t need to track the Visa Bulletin. The priority date doesn’t matter because there is no annual limit in your category.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Pierre J.