Priority Dates: How Does the Visa Bulletin Work?
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 Date
The priority date in an EB green card case requiring a PERM labor certification (PERM LC) 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 PERM LC, then the priority date assigned is the date that the immigrant petition (Form I-140) is properly filed with U.S. Citizenship and Immigration Services (USCIS).
In an 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 concept generally does not apply. It just does not matter. This immediate relative 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 are Priority Dates Important?
A foreign national applying for permanent residence from within the United States determines when s/he is able to file 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.
Dual Chart System Almost a Decade Later!
The DOS introduced a new system for applying priority dates in the October 2015 Visa Bulletin. The visa bulletin now provides two charts with separate sets of cutoff dates in both the EB and FB categories. One chart is designated as Final Action (commonly referred to as Chart A). The dates in this chart indicate when a green card may be approved for an applicant.
The second chart is designated as Dates for Filing (commonly referred to as Chart B). For consular processing cases (where you don't file the I-485 application, but instead go outside the US to complete the green card process), these dates indicate "when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.” The National Visa Center is the DOS office responsible for collecting documents, fees, and forms before the final steps completed in the applicant's home country.
Each month, the USCIS indicates on its website whether you can only use the Chart A (Final Action) or also use the Chart B (Filing Dates) when you are filing filing an I-485 application. The applicants in each EB or FB category then use this decision by the USCIS to decide whether they file their respective I-485 applications based on visa bulletin Charts A or B to obtain their green card. Further, in months when Chart B 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) Chart A.
Annual Quotas and Other Limitations
As 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 or preferences. The visa number quota is allocated further between the various preference categories, such as first preference (EB1), second preference (EB2), and 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 Bulletin: Break it Down for Me!
The dates on Chart A 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 (where the horizontal and vertical intersect), 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 (I-130 for FB and I-140 for EB) in this category to either receive an immigrant visa at a US Consulate abroad or obtain approval of a pending I-485 application from the USCIS.
If the demand for visa numbers exceeds the available supply, Chart A in the monthly visa bulletin indicates this with the 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. Chart A dates can always be used to file the I-485 application.
In months when the USCIS indicates that the Chart B dates may be used for filing an I-485 application, than the same rules apply for figuring out if you qualify to file based on your priority date. The I-485 application can be filed if the case is in a category listed as “C” for current, or if your case has a priority date earlier than the corresponding Chart B cutoff date (meaning for your country of birth and category). However, the USCIS may not approve the I-485 application unless and until the cutoff date in Chart A moves past the priority date for that case.
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 Advance
It 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.
Retrogression
A 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 Chart B dates, many of which are not current under Chart A.
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 Status
Even though the USCIS is unable to approve an I-485 until the priority date is current under Chart A, the I-485 applicant is eligible to request important benefits that arise from this filing. These benefits include an unrestricted employment authorization document (EAD Card) 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 qualifying new job offer in the same / similar job classification as the original green card job offer.
Conclusion
It should be clear that visa numbers and the Visa Bulletin are extremely important in the green card process. One must have a basic understanding of the meaning and function of priority dates and the Visa Bulletin in order to make a number of important decisions. Information about the visa bulletin, including any reliable predictions and other developments, is always shared with you on MurthyDotCom.
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