Priority dates determine when a foreign national will be eligible to file the I-485 Adjustment of Status Application. The advantage of filing the I-485 at the earliest opportunity is that it allows the foreign national and any immediate family members the opportunity to file for an EAD (Employment Authorization Document) that grants permission to work without having to maintain a temporary worker status such as H-1B. It also allows the foreign national and any immediate family members to apply for Advance Parole that grants permission to reenter the U.S. after travel abroad while the I-485 is pending (without a valid nonimmigrant visa). However, it has always been our recommendation to maintain nonimmigrant (H-1B, etc.) status and enter using the corresponding nonimmigrant visa during the processing of the I-485 Application.
A priority date, in an employment-based case requiring Alien Labor Certification (Labor Cert.), is the date that the labor certification case was filed. This applies to the majority of cases, including the second and third-preference categories.
If the Labor Cert. was filed in a category that does not require labor certification (1st preference category, Schedule A, etc.), then the priority date assigned by the USCIS is the date the I-140 Immigrant Visa Petition is received by the USCIS Service Center.
A person determines when he or she will be able to file for the I-485 by checking the dates each month on the Visa Bulletin chart. Every month, the U.S. Department of State (DOS) publishes the Visa Bulletin which is posted at various places on the internet, but which can be viewed on the DOS website here: http://www.travel.state.gov/visa/frvi_bulletincurrent.html . We also have a link to the appropriate page on the “Visa Dates” page of our website. The Visa Dates indicate whether the dates are “current” or whether there is a backlog in order to file for the Adjustment of Status or Consular Processing (“CP”).
By law, there is a quota or limit to the number of people who can receive a green card in a given year. This quota is based both on the employment-based category (1st, 2nd, or 3rd preference, etc.) and on “per country” limits. This means that every country, no matter how large or how small, is given a maximum percentage allocation of the worldwide quota. The number of spaces (sometimes referred to as “visa numbers”) for a particular country, that are available at any given time, will depend on various factors (ex: how many immigrant visas have been approved at consulates abroad, how many I-485 applications have been approved for persons from that country in the U.S. during the prior month, etc.). Such factors determine the movement of priority dates and, in turn, will affect the number of I-485 applications that can be filed during the following month after the priority dates are released.
If the Visa Bulletin chart states “C” for a given category and country, that indicates that the numbers are “current” in the specific employment-based category, whether 1st preference (Priority Workers), 2nd preference (Advanced Degree or Exceptional Ability), or 3rd preference (Professionals or Skilled Workers), and that there is no waiting period for filing the I-485 application. If the Visa Bulletin chart states “U” for a given category and country, that indicates that the numbers are “unavailable” in the specific employment-based category, and that no one is eligible at that time for filing the I-485 application
However, if the numbers are backlogged as indicated on the current Visa Bulletin, there will be a date (sometimes called a “cut-off date”) indicated (usually in a format such as 15Apr01, which translates to April 15, 2001).
If your Priority Date is BEFORE the date indicated, then you are eligible to file the I-485 application for adjustment of status during the particular month when the dates are current. This means your case is “current”.
If your Priority Date is AFTER the date indicated, you must wait until the cut-off date has moved forward and has “passed” your Priority Date. Once it “passes” your priority date, you are “current” and eligible to file your I-485.
Usually, the cut-off date moves forward in time as each Visa Bulletin issued. Sometimes, it moves backwards. Monitoring the progress of the cut-off date will give you an idea of how long it may take for your case to become “current”.
IMPORTANT : Please take note of the month for which the chart is issued. The Visa Bulletin is released about 2 weeks in advance (usually on the 10th or so of each month). If, for example, the Priority Date is not current for April of this year, but when the May dates are issued in mid-April the chart shows that the date will be current for May of this year, then the foreign national will be able to file the I-485 during the month of May. If the I-485 application reaches the USCIS early, say on April 30, when the dates only become current in May, the case will either be rejected by the mailroom or, if it is processed, the I-485 may be denied one or two years later – merely for filing a day too early!
What happens if the Priority Dates retrogress after I have filed the I-485 petition?
Answer: If a person has already filed the I-485 application when the dates were current, but then the Visa Bulletin date retrogresses to a date before the priority date, the foreign national would still receive the benefit of being able to remain in the U.S. and obtain an EAD and Advance Parole. Or he/she could remain in the U.S. in H-1B status renewable for 6th year extensions (and beyond) if necessary and if eligible. The I-485 would not be denied solely because the priority date has retrogressed. However, the I-485 could not be approved until the date again becomes “current.”
NOTE: Your country of birth determines to which country category you belong. However, if you are married and your spouse was born in a different country, then you may use the doctrine of “cross-chargeability” and use his/her country of birth in the determination.