Employment-Based Immigration: Understanding Priority Dates
By Hon-Vinh Duong, Esq.
Posted June 15, 2009
As backlogs in adjudicating employment-based “green card” applications continue to plague our immigration system, forcing ten of thousands of international workers to wait years and years to acquire lawful permanent resident status, it is critical for employers and international workers to understand how U.S. immigrant visas are allocated, why there are backlogs in some employment-based preference categories and how those backlogs delay the processing of green card applications. This article is intended to provide a brief overview of employment-based immigrant visa priority dates.
What Is A Visa Bulletin?
On approximately the 15th of every month, the U.S. Department of State publishes the Visa Bulletin, which summarizes the availability of immigrant visa numbers in the employment-based preference categories. The Visa Bulletin is needed every month because there are numerical limitations on the various immigrant visa categories, as well as limits on the number of immigrant visas per year, which can be issued to natives of any single foreign country.
Indeed, Section 201 of the Immigration and Nationality Act allocates only 140,000 immigrant visas annually for all the employment-based preference categories. Section 202 of the Immigration and Nationality Act provides that the total number of immigrant visas charged or issued to any single foreign country may not exceed 7% of the total number of immigrant visas made available in any single fiscal year. This means that, if all 140,000 immigrant visas are issued in a particular fiscal year, no more than 9,800 Chinese-born natives, 9,800 Indian-born natives, 9,800 Mexican natives and 9,800 Filipino natives would be eligible for immigrant visas that year. However, if the total number of immigrant visas exceeds the number of applications submitted, then the requirement preventing countries from being issued more than 7% of the allotment of immigrant visas will not apply.
Whenever there are more applicants for an employment-based category than there are available immigrant visas in any given year, the category will be considered “oversubscribed” and immigrant visas will be issued in the chronological order in which the immigrant petitions were filed. Immigrant visas cannot be issued until an applicant’s priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached or the visas may be “unavailable”.
What Is A Priority Date?
A priority date determines an international worker’s place in line for an available immigrant visa. For employment-based immigration cases, the priority date is established either on the date a labor certification application is filed with the U.S. Department of Labor or on the date that an I-140/I-360/I-526 immigrant petition is filed with U.S. Citizenship and Immigration Services, whichever is earlier.
The sooner an international worker is able to establish a priority date, the sooner he/she will be eligible to apply for an immigrant visa or adjustment of status.
What Is A Cut-off Date?
When an employment-based preference category is “oversubscribed,” the Visa Bulletin will reflect this fact by indicating a cut-off date, such as 01JUL05, under the appropriate chargeability area. This means that only individuals with a priority date on or before the one listed on the Visa Bulletin may be issued immigrant visas and/or are eligible to apply for adjustment of status in the United States.
If an employment-based preference category is not oversubscribed, the Visa Bulletin will indicate that the category is “Current” by listing a “C” under the appropriate chargeability area. If it is totally oversubscribed, a “U” indicates unavailable.
Example 1: Jaya was born in India and is applying under the employment-based 2nd preference category with a priority date of March 6, 2005 (i.e., the date her employer filed her labor certification application). According to the Visa Bulletin, the cut-off date for this category is March 29, 2006. Assuming Jaya’s labor certification application has been approved, she may apply for adjustment of status in the United States immediately because Jaya’s priority date is earlier than the cut-off date.
Example 2: Tito was born in Mexico and is applying under the employment-based 1st preference category with a priority date of April 8, 2008. According to the Visa Bulletin, the cut-off date for this category is listed as “Current.” This means that Tito is eligible to apply for adjustment of status in the United States immediately.
Example 3: Thibaut was born in France and is applying under the employment-based 3rd preference category with a priority date of April 8, 2008. According to the Visa Bulletin, the cut-off date for this category is July 1, 2005. Since Thibaut’s priority date is later than the cut-off date, he must wait until the priority date in the employment-based 3rd preference category is “current” or until the Visa Bulletin indicates that his priority date has been reached before he is eligible to apply for adjustment of status.
Because it is not possible to know how many people will become eligible to apply for adjustment of status due to the advancement in cut-off dates, future movement of cut-off dates remains largely unpredictable. Beware of the lawyer who confidently advises their clients of just how long it will take to become a permanent resident!
Who Determines Immigrant Visa Availability, Quotas And Cut-off Dates?
Congress determines the number of immigrants allowed to be admitted to the United States for each employment-based preference category and chargeability area by allocating the number of immigrant visas available each fiscal year, i.e. October 1 - September 30. Based on the number of immigrant visas allocated by Congress each fiscal year, the U.S. Department of State is tasked with establishing cut-off dates to ensure proper distribution of immigrant visas for all employment-based preference categories and chargeability areas.
Is There Any Way Of Knowing In Advance When Priority Dates Will Become Current?
There is no way to know in advance when an international worker’s priority date will become current. Priority dates on the Visa Bulletin do not advance in real time and do not always advance one month at a time. Often there is no advancement at all. And sometimes, priority dates may even retrogress.
How Do You Determine Which Employment-Based Preference Category Applies To A Particular International Worker?
An international worker’s employment-based preference category is determined by his/her education, work experience, the requirements of the position offered and the type of case filed for that particular individual. Immigrant visas are available for those who qualify under the following five employment-based preference categories:
• EB-1 classification is reserved for individuals with extraordinary ability in the sciences, arts, education, business or athletics, as well as outstanding professors and researchers and multinational executives and managers.
• EB-2 classification includes those workers who are members of the professions holding advanced degrees or their equivalent and persons who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
• EB-3 classification is reserved for individuals with at least two years of experience as skilled workers; professionals with a baccalaureate degree; and other workers with less than two years experience who can perform labor for which qualified workers are not available in the United States.
• EB-4 classification is reserved for “special immigrants,” including but not limited to religious workers, U.S. government employees, some foreign medical graduates, juvenile dependents of a court who are eligible for foster care, and members of the U.S. Armed Forces. Special immigrant priority dates are established on the date the I-360 is filed.
• EB-5 classification is reserved for immigrants seeking to enter the United States to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. The minimum investment is $1 million, although that amount may be $500,000 if the investment is made in a “targeted employment area.” Investor priority dates are established on the date the I-526 is filed.
If An Employment-Based Preference Category Is Oversubscribed, How Does The Immigrant Visa Backlog Affect The International Worker?
If an international worker has an adjustment of status application pending, their adjustment of status application will not be adjudicated until their priority date becomes current. During the pendency of the adjustment of status application, the international worker remains eligible to renew their employment authorization and travel documents and may continue to extend their H-1B status (if applicable).
If the individual has not filed an adjustment of status application, they will not be eligible to apply for adjustment until their priority date becomes current. While it is not possible to file the I-140 immigrant petition concurrently with the I-485 adjustment of status application unless the international worker’s priority date is current, employers can and should file the I-140 immigrant petition as soon as possible following approval of the labor certification application. Doing so may benefit the international worker seeking to qualify for a post 6th year H-1B extension based upon an approved I-140 immigrant petition and a backlog in the applicable employment-based preference category. Under a July 2007 change in law, I-140 petitions must be filed within 180 days of the Labor Certification grant.
Please note that if an individual is not eligible to file an adjustment of status application because their employment-based preference category is oversubscribed or backlogged, they must continue to maintain nonimmigrant status in order to remain and work in the United States legally.
Does An International Worker Lose Their Priority Date If A Subsequent Petition Is Filed?
Unless revoked for fraud or misrepresentation (not simply due to an employer’s withdrawal), a priority date created by approval of an employment-based 1st, 2nd or 3rd preference petition is retained by the worker for any other 1st, 2nd or 3rd preference petition approved subsequently for the same individual. In all cases, the beneficiary of multiple petitions is entitled to the earliest of the filing dates of the various petitions.
A priority date established in the employment-based 1st, 2nd or 3rd preference category, however, is not transferable to employment-based 4th or 5th preference petitions or to a family-sponsored petition.
What Happens To A Priority Date If The International Worker Changes Jobs Or Employers After Filing An Adjustment Of Status Application?
If an adjustment of status application based upon an approved 1st, 2nd or 3rd preference petition remains pending more than 180 days, that application remains valid so long as the new job is in the same or a similar occupational classification as the job for which the underlying 1st, 2nd or 3rd preference petition was filed.
If it is discovered that an individual has ported off of an unapproved 1st, 2nd or 3rd preference petition and the adjustment of status application has been pending 180 days or more, U.S. Citizenship and Immigration Services will review the pending 1st, 2nd or 3rd preference petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue occurring after the filing of the petition, U.S. Citizenship and Immigration Services (USCIS) will approve the petition on its merits. USCIS will then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.
Regardless of whether an individual changes jobs or employers based upon an approved or unapproved 1st, 2nd or 3rd preference petition, USCIS maintains that porting to a new job or new employer does not change the individual’s priority date. The priority date continues to be determined at the time the initial labor certification application was filed or at the time the initial I-140 immigrant petition was filed with USCIS in cases where labor certification is not required.
Can An International Worker Lose Their Priority Date?
An individual may lose their priority date if they fail to apply for an immigrant visa within one year of notification of availability. If an applicant fails to reply to the inquiry correspondence sent by the U.S. State Department, termination of their immigrant visa application will begin. The U.S. Embassy will first send a follow-up letter and instruction package to the applicant. If the applicant does not answer within one year, a termination letter is sent. At this point, the applicant has one more year to activate the immigrant visa case. If there is no answer in one year, the case will be terminated. An applicant can stop termination of a case by notifying the U.S. Embassy or Consulate before the prescribed time period has lapsed that they do not want the case to be closed.
What Is Chargeability And Cross-Chargeability?
The Immigration and Nationality Act (“INA”) provides that an immigrant visa applicant is chargeable to their country of birth, not country of citizenship or nationality. For most applicants, country of birth and country of citizenship/nationality are one and the same. However, this is not always the case. For example, an applicant born in Mexico who later immigrates to the France and acquires French citizenship may have dual citizenship in both Mexico and France. In this example, the applicant is chargeable to Mexico, rather than France because the applicant’s citizenship and nationality are not controlling.
An applicant who relinquishes citizenship from their country of birth upon acquiring citizenship of another country, or whose country of birth automatically strips them of citizenship (or requires them to renounce citizenship in the country of birth) upon acquisition of another country’s citizenship, would still be considered chargeable to their country of birth.
The INA recognizes some exceptions to the general chargeability rule that may be advantageous to applicants when their employment-based preference categories are oversubscribed or backlogged. The INA provides:
• That an immigrant child may be charged to the same foreign state to which a parent is chargeable if the child is accompanying or following-to-join the parent;
• That an applicant who has lost U.S. citizenship shall be charged to the country of current citizenship. If the applicant is not a citizen or subject of any country, the applicant shall be charged to the foreign state of last residence; and
• That an applicant who was born in a foreign state in which neither parent was born, and in which neither parent had a residence at the time of the birth, may be charged to the foreign state of either parent. Take for example an applicant born in Mexico whose parents were both born in France and were residing in France, but were vacationing in Mexico at the time of the applicant’s birth. In this scenario, the applicant may be charged to France, rather than Mexico.
In some instances, an applicant of a country whose employment-based preference category is oversubscribed may have their adjustment of status or immigrant visa application charged to their spouse’s country of birth. This is referred to as “cross-chargeability.”
For adjustment of status applicants, INA 202(b)(1) and 202(b)(2) provide that an alien spouse who is accompanying his or her spouse to the United States may be charged to the country of which the principal applicant is a citizen, but does not expressly provide that the principal applicant may be charged to the derivative spouse’s country of birth.
The Foreign Affairs Manual (“FAM”), on the other hand, provides a more expansive interpretation of cross-chargeability for applicants applying for immigrant visas. The FAM allows derivative spouses to be charged to the principal applicant’s country of birth OR for the principal applicant to be charged to the derivative spouse’s country of birth (See 9 FAM 40.1 N8).
For example, Vishwanath, the beneficiary of an employment-based third preference (“EB-3”) petition, was born in India, which is currently oversubscribed. Vishwanath is married to Cecile, who was born in a country that is “current” such as France. Under the INA, Vishwanath (as the principal applicant) may not be charged to Cecile’s country of birth and is therefore not eligible to apply for adjustment of status. Under the FAM, however, Vishwanath may be issued an immigrant visa chargeable to Cecile’s country of birth if EB-3 numbers are available. Under FAM, instead of having to wait years and years to apply for an immigrant visa, Vishwanath would be eligible to apply with Cecile immediately. In such cases, both the husband and wife, in a sense, are principal aliens. Vishwanath is the principal alien for the purpose of conferring a preference status and Cecile is the principal alien for the purpose of conferring a more favorable foreign state chargeability.
Interestingly, U.S. Citizenship and Immigration Services’ I-485 National Standard Operating Procedures (“SOP”) states the following:
“The officer must determine the country of chargeability of visa issuance. The country of chargeability is the country of the applicant’s birth. Visas for the dependents will be first charged against the dependent’s country of birth. If unavailable, the visa may be charged against the country of birth of the principal applicant. If the visa is unavailable for the principal applicant’s country of birth, the visa may be charged to the country of birth of the principal applicant’s spouse (but not the children).”
Given that USCIS’ operating procedures accept requests for derivative spouse cross chargeability, adjustment applicants in oversubscribed employment-based preference categories may well consider filing their adjustment of status applications based on derivative cross chargeability on the chance that USCIS will adhere to established procedures under SOP, rather than strictly enforce the requirements of INA 202(b)(1) and 202(b)(2).
If The Beneficiary Of An I-140 Petition Marries After Filing An Application For Adjustment Of Status, What Will Be The Derivative Spouse’s Priority Date?
If an unmarried individual submits an adjustment of status application and thereafter marries, the new spouse will be eligible to apply for adjustment of status or apply for an immigrant visa to follow-to-join their spouse so long as the marriage takes place prior to approval of the I-140 beneficiary’s adjustment of status application. The priority date of the principal is assigned to the spouse.
If the principal’s priority date retrogresses before the spouse files an adjustment of status application in the United States, the spouse cannot submit an adjustment of status application until the priority date becomes current.
If the spouse is outside the United States when the principal’s priority date retrogresses, the spouse cannot be granted an immigrant visa until the spouse’s priority date again becomes current.