Priority Dates, please help me understand

[gsweb]

Hi folks. I need your help understanding priority dates.

Here’s the saga about my wife’s case. She’s from Ukraine and lived in the US since 1993 (Yes, that long - originally as asylum seeker). She filed a Labor Certification under 245(i) with priority date of April 17, 2001. Her I-140 was approved in 2002, and she had her interview for I-485 adjustment of status in July 2004. The officer congratulated her on that day and told her to wait for greencard in the mail. And that’s when it all stopped.

Well, pretty soon, she will have waited 4 years after her interview, and no one can explain why. She’s never had any criminal record; her name is not that common either. Some time ago, her lawyer claimed delays were caused by retrogressing priority dates. Then, it was name check delay. No help has come from BCIS, FBI, senators, congressmen, etc. Our lawyer has also abandoned my wife’s case because of this delay. The best she could offer was mandamus (if we paid her extra $5k).

I could rant all day about this classic case of hypocrisy and "humanitarian" nature of BCIS, but we all know what a waste of breath that would be. Mandamus seems like the only way to go now. Unfortunately, my wife’s poor English will present an enormous challenge without a lawyer. I could probably do all the research, but I can’t legally represent my wife in court. Seems like the dead end.

Anyways, please help me understand something first. My wife’s Labor Certification had priority date of April 17, 2001 (according to her file). Her category is EB3 unskilled workers. Her lawyer, before she dropped the case, had advised my wife that her visas should be available in May 2008. I, however, think that was a bunch of baloneys. According to April 2008 Visa bulletin, priority for employment based cases for “other workers” is March 1, 2002 now. Am I correct in assumption that my wife’s priority dates are open now and visas availability is not the cause of her agonizing delay?

Please anyone…
Thank you in advance

 

[Jackolantern]

There was a big retrogression in 2005 that sent the priority dates very far back. But taking a look at the archived visa bulletins, I see the "Other Workers" category moved to October 2001 at the beginning of 2007, and stayed there during 2007 except for a few months of unavailability in the summer.

If her priority date is April 2001, her case has always been current since October 2007, so visa numbers were continuously available to her for the past several months until now. Double-check the I-140 approval notice and see what her priority date is (sometimes it isn't quite the same as the labor certification filing date).

What may have happened is that her case got "lost in transit" due to the interview. For most employment-based cases they don't bother to interview (I don't know what the selection criteria is; I've heard it is a combination of random selection, plus others selected if there is anything suspicious). When they do decide to interview, they transfer the files (physically transferring paper) from one of the main service centers like Texas or Nebraska or Vermont to the local office for the interview. Sometimes they forget to transfer it back to the service center, and your file sits idle under a pile at the local office.

What you can do for now is make an Infopass appointment to go to the local office (preferably the same one where she did the interview, if it isn't too far away) and discuss what happened to the case ... remind them her PD has been current for over 6 months, there was an interview in 2004, etc. Ask them if the file has been transferred back to the service center, and if yes, when was it transferred and which service center. And ask if that service center transferred it to another service center (there was a mass transfer early last year from Vermont to Texas, and I think California to Nebraska). If they can't or won't give you any useful information, you'll have to consider filing a WOM (but use a different lawyer, of course).

However, before you make that appointment, if you haven't already checked the status online, use the I-485 case number to check the status, just in case it was already approved but the card got lost in the mail.