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. 

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