FAQ: Priority Dates

[usnycus]

Question #1: Can you explain what a priority date is?

Answer: A priority date is a person's place in line for becoming a permanent resident of the United States. Most green cards are numerically limited, depending on your country of birth, and the family or employment category by which you are obtaining permanent residence.

You can compare obtaining a priority date to getting a number at a bakery.

Many people enter the bakery and spend a lot of time looking at the pastries and cakes only to be surprised when someone who entered long after they did has their number called and are then served before they are.

The important thing, if you want to become a permanent resident, is to obtain a priority date as early as possible.

Question #2: How do I establish a priority date?

Answer: For the family-based categories, a priority date is established when your relative submits a visa petition (form I-130) on your behalf.

For the employment based categories, a priority date can be established in one of the following two ways:

1) When your employer submits an application for an alien labor certification on your behalf; or

2) For those categories where no labor certification is required, when you or your employer submits a visa petition (Form I-140) to the INS on your behalf.

Question #3: If I switch jobs before my I-140 is approved, Can I keep my priority date?

Answer: No. This is true for cases that involve alien labor certifications. However, if your case does not involve alien labor certification, and you or your employer has filed an I-140 visa petition, you or your new employer can file a new I-140 and keep the earlier priority date.

 

[usnycus]

Question #4: What if a person's status changes from one preference category to another, in my case, for child under 21 and unmarried to over 21 and married? What happens to my priority date?

Answer: If your parent was a citizen when he or she submitted the initial petition on your behalf, your becoming 21 means that you are no longer an "immediate relative" but are now an unmarried son or daughter under the first preference category. When you marry, you become a married son or daughter under the 3rd preference category.

However, throughout all of these changes of categories, your priority date remains the same: the day that your parent first filed a petition.

The situation is quite different if your parent was a permanent resident when he or she initially submitted a petition on your behalf.

The filing of such a petition places you in the Family 2A category.

When you marry, the visa petition is automatically terminated since permanent resident parents are not allowed to petition for married sons or daughters.

However, if your parent naturalized prior to your marriage, your petition remains valid, and upon your marriage, you are classified in the family 3rd category.

You can see that the order in which certain events occur is very important in retaining your priority date.

Question #5: My EB3 (Employment-Based 3) Priority Date is 2/02. I filed I-485 last summer. My priority date (PD) is not current yet. Is Consular Processing still an option for me? Do I have to wait until my PD is current? What are the pros and cons of consular processing?

Answer: You cannot adjust status or consular process until your priority date is current.

Question #6: My Company filed for my labor certification (LC) through the regular non-RIR (Reduction-in-Recruitment) in November 2001. Now the company is filing for my LC through RIR. Is there a way I can keep the original priority date?

Answer: Yes

Question #7: Is there a document or receipt which tells me that I have a priority date, or is it that my lawyer may have it?

Answer: When the INS approves an employment-based visa petition or a family-based visa petition it sends both the petitioner and the lawyer a Notice of Approval (Form I-797). This document shows your priority date.

 

[usnycus]

Question # 8: We have filed our 485 through my wife's employer in EB3 category in 2/02 (Vermont center) with priority date as 2/01. We are waiting for our finger printing notice. Now that the dates have been rolled back for EB3, how will she be affected?

Answer: She won't be able to adjust status until her priority date is once again current.


Question # 9: If I go to another employer and file another RIR, I-140, do I get to keep the original 2/01 PD?

Answer: The rule is this: Whenever you have a visa petition approved under EB-1, EB-2, or EB-3, and for whatever reason you do not use that visa petition but file a new one instead you are entitled to the earlier priority date as long as the second petition is also under EB-1, EB-2, or EB-3. Remember, however, that it is the approval of the petition, not merely of the labor certification, that allows you to establish and keep the earlier priority date.


Question # 10: I was first employed by a company in Ohio. I filed for the labor certification (LC) with a filing date of 4/02. The LC was approved, but I didn't file I-140. The company was later acquired by my current employer in Indiana. My current company filed another LC with a filing date of 3/03. When I file the I-140, I requested the earlier priority date with both LCs attached. The INS approved I-140, but they gave me the later priority date. Am I entitled the earlier priority date?

Answer: From your description it seems that you are entitled to the earlier priority date. Of course, this depends on a number of factors, including whether both labor certifications were filed for the same occupation, whether the new company was a "successor in interest" to the old company, etc.

Source: http://immigration.about.com/

 

[IN_LC_2002]

If I moved to another location of my employer before my first LC is approved, and now my employer is filing a new LC in the new location for me for the same catergory and equivalent position, will I retain my first priority date? Thanks!

 

[usnycus]

No. Check Question 9

If I moved to another location of my employer before my first LC is approved, and now my employer is filing a new LC in the new location for me for the same catergory and equivalent position, will I retain my first priority date? Thanks!

 

[usnycus]

Potential EB Visa Numbers Cut-Off Dates and Retention of Priority Dates
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source: http://www.immigration-law.com
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As there is a likelihood that the employment-based immigrant visa categories may face cut-off dates in the future, people should review their plans to deal with the situation. Following are the rules on priority date under the immigration laws:

a) Priority date is the date when the alien labor certification application is receipted by the state labor certification office in the ALC-based immigration proceedings and I-140 petition is receipted by the USCIS in the ALC-waiver immigration proceedings such as EB-11, EB-12, EB-13, EB-2(NIW), EB-2(Schedule A), EB-3(Schedule A). If the filing is rejected for certain deficiency, no priority date is established even if it is received by the agencies. In the labor certification application, missing signature of the employer or alien is considered such deficiency. In the I-140 petitions, missing signatures and defective filing fee check are considered such deficiencies. Sooner the applidcation is filed, sooner one gets the earlier priority date.

b) Retention and Transfer of Priority Date: Once I-140 petition is "approved," the priority date is attached to the alien beneficiary. Accordingly, even if the alien changes the employment and start a new employment-based immigrant proceeding, his/her prior priority date is retained and grandfathered. Priority date is not attached for the purpose of the retention even if labor certification approved until the I-140 petition is filed and "approved." Once attached, the priority date can be cross-transferred among EB-1, EB-2, and EB-3 once the priority date in one of these classifications is attached and retained. Retained priority date can be transferred only among EB-1, EB-2, EB-3, and cannot be transferred from or to Investor Immigrant Petition (I-526) or Special Immigrant Petition (I-360). Retained priority date cannot be transferred from or to family-based immigrant petition (I-130).

c) Priority Retention Termination: If approved petition is revoked, retention of priority date is also gone. Both automatic revocation and USCIS act of revocation on good cause and on notice will terminate retention of priority date. Approved petition is automaticaly revoked on four grounds: (1) Invalidation of underlying labor certification by the DOL; (2) Death of the employer or the alien beneficiary; (3) Employer's withdrawl of the approved petition; or (4) Termination of the employer's business. The third ground of automatic revocation (Employer's withdrawl) raises an interesting question in the context of AC-21 180 rule on change of employment. USCIS memorandum states that once I-140 is approved and I-485 passes 180 days, employer's revocation of the approved I-140 will have no effect on portability of the approved I-140 petition. If this memorandum implies that such approved I-140 petition is not subject to the automatic revocation after 180 days of I-485 filing under the AC 21 Act, one may be able to argue that the alien beneficiary may retain the priority date once he/she passes the test of portability of approved I-140 petition under Section 106(c) of AC 21 Act.

d) Priority Date Valid Only with the Alien Beneficiary and Cannot be Transferred to Other Aliens.


This is the time to review the retention rule regulation, 8 CFR 204.5(e).
"(e) Retention of section 203(b)(1), (2), or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien."

 

[venkatba]

What Priority date means.....?

Hi,

My company applied for my GC LC in Dec'03(illinoise). They sent me an receipt which says the priority date as 03/23/04. what this date exactly means? Is it the date the application moved to the Federal or the date application received by the State LC office. Could some body throw some light on this .....
Thanks in advance for your response.....

Thanks,
Venkat