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 Understand the Priority Date and Its Retention

1. Know Your Priority Date

Anyone going through the permanent residence process needs to have a basic comprehension of priority dates. Those who are new to this process often do not have this information. 

Anyone who is undergoing the Green Card process, but does not know her/his priority date, should find that important piece of information. That little date can make all the difference in the world in how long the case could take and what options are available.

A priority date in the employment-based 1st, 2nd or 3rd preference can be maintained and used for any subsequent petitions in any of those categories, as long as the I-140 petition has been approved in the original case. This substitution of the priority date from one employment-based (EB) application to another is possible even if the EB petitions are sponsored by different employers, or are in different preference categories.

  • For employment-based 2nd or 3rd preference category cases requiring a Labor Certification application (LC), the priority date is established at the date the labor certification is filed.
  • For categories that do not require labor certification, the priority date is the date the Form I-140 is received by the USCIS.

An example of this scenario is when an employer sponsors an employee for the Green Card process and during the process the employee leaves to take a job at another company. If the employee leaves after the first company has obtained the I-140 petition approval, she/he must start the process over but can retain the original priority date. If the employee leaves the company before the I-140 petition has been filed, the employee leaves without the priority date, unless the first employer continues the process for the employee with the intention of the parties to continue employment after the Green Card is approved.

The proper time to claim the original priority date is at the filing of the subsequent I-140, or at the filing for adjustment of status (I-485) based upon the second I-140. A copy of the earlier I-140 approval notice is included with the filing, to prove entitlement to the earlier priority date. There is an exception to this rule. If the Bureau of Citizenship and Immigration Services (USCIS) revokes an I-140 approval due to fraud or misrepresentation, the priority date is lost and cannot be re-used

2. When Your Priority Date is Established

The term priority date is used in employment-based (EB) as well as family-based (FB) permanent residence (green card) cases. It is the date when the first filing in the case was received by the government, usually the U.S. Department of Labor (DOL) or the U.S. Citizenship and Immigration Services (USCIS). It establishes one's place in the appropriate "line."

In EB green card cases, the priority date is usually set by the date the PERM labor certification is filed. Filed means received by the DOL. It does not mean the date the company or lawyer started working on the case. Typically, months of work precede the filing.

A limited group of EB cases can omit the PERM labor certification process (like NIW or EB1 cases), and usually start with an I-140 employer petition. In these cases, the priority date is set by the I-140 petition filing date. Again, this means the date it was received by the appropriate governmental entity, the USCIS.

In FB cases, the priority date is also the date of the first filing in the case. FB cases are those cases in which the initial filing beginning the case is made by a sponsoring family member. This is usually the relative petition (Form I-130). The date this form is filed with the USCIS establishes one's priority date.

3. Your Priority Date is Very Important

As mentioned, the priority date establishes a person's place in "line." The lines are created because the United States government restricts the number of people who can immigrate permanently each year. The restrictions are based on the EB and FB categories, as well as country of origin. The limits translate to visa numbers allocated each year. In order to obtain a green card, there must be a visa number available in the particular category. The availability of a visa number in a category depends upon the priority date.

The DOS visa bulletin is issued monthly. There are separate charts for EB cases and FB cases. The data are in a grid, with EB or FB categories down the left side and countries of chargeability across the top. Thus, it is necessary to know one's category. The country of chargeability is generally the country of one's birth. 

The date in the box that corresponds to one's category and country indicates whether or not there is an available visa number for a given priority date. The dates are referred to as cutoff dates. There are visa numbers for those cases with priority dates prior to the cutoff dates. The length of time between one's priority date and the cutoff date provides a very rough idea of the expected waiting time for one's case. However, it is not a simple, straight line calculation at all. 

4. What to Do if Your Date Is Available 

If one's priority date is available, or close to available, it may be time to take further action in the case. The appropriate steps depend upon many factors, including what other filings have been made, where the sponsored individual is located (in the U.S. or abroad), whether any immigration violations or other problems are in her/his history, and the like. Such issues should be discussed with a qualified immigration attorney. 

It is also important to get information about documents - particularly those needed from outside the United States - that will be needed at some time to move forward with the case. It is often important to get an idea of the expected costs involved in the upcoming steps, in order to plan accordingly. The filing fees alone can represent a significant expense, particularly for those with multiple family members seeking green cards simultaneously. 



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