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| Tuesday, January 08, 2008 |
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Priority Dates, Immigrant Visa Availability - What Does It All Mean?
By admin @ 4:28 AM :: 923 Views ::
4 Comments ::  :: News, Labor Certification (PERM), Visa Bulletin, I-140 Petitions, I-485 Adjustment of Status
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Having been immigration lawyers for over a decade, we have provided advice to thousands of immigrants on a variety of immigration matters. One of the most difficult areas of immigration law to explain to an intending immigrant is the concept of priority dates and immigrant visa numbers. If you have had a consultation with a lawyer on obtaining permanent residency, you may have heard a lawyer say, "you have to wait until an immigrant visa number is available and your priority date becomes current." That sounds nice, but what do all of those words mean?
A 'priority date' is the date a labor certification or immigrant petition (I-140 or I-130) is filed on your behalf. The date the case is received by the government agency is your priority date. For example, if you are an employee of Corporation Inc. and they file a labor certification for you that is received by the Department of Labor on January 11, 2008, that becomes your priority date for the rest of your case. If a labor certification is not needed for your case, the date an I-140 Immigrant Petition for Alien Worker is filed on your behalf is the priority date. In the family immigration context, if you are a U.S. permanent resident and you file an I-130 Petition for Alien Relative for your spouse in Russia on January 10, 2008, that date becomes your spouse's priority date. These are just a few examples of how a priority date can be set for an intending immigrant.
An 'immigrant visa' is the legal term for permanent residency or "green card". The U.S. government created per-country limits on immigrant visa or permanent residency availability. There is a maximum number of family-based and employment-based immigrant visas that can be issued to citizens of each country in a fiscal year. If the demand for immigrant visas exceeds the numbers allotted for a country in that year, an immigrant visa would be 'unavailable'.
So what does an 'immigrant visa' have to do with a 'priority date?' The Department of State issues a Visa Bulletin every month that provides the date of immigrant visa availability for all employment and family-based preference categories. If an intending immigrant has a priority date that is on or before the date listed in the Visa Bulletin for his/her preference category and nationality, then a visa is available for that person. An available visa would allow the applicant to apply for an I-485 adjustment of status or initiate consular processing of their residency application outside the United States.
For example, Corporation Inc. files a labor certification on your behalf on January 10, 2008 and it was received by the Department of Labor on January 11, 2008. That is your priority date. Your labor certification was then approved on June 15, 2008. Your employer can file an I-140 Immigrant Petition for Alien Worker on your behalf once the labor certification is approved. However, whether or not you can file an I-485 Adjustment of Status Application depends on whether an immigrant visa is available to you. You would need to look at the Department of State Visa Bulletin for June, check the priority dates for your preference category and country, and see if your priority date is on or before that date. If so, you can go ahead and file the I-485 adjustment because a visa number is available. If your priority date is later than the date in the Visa Bulletin for your preference category, you will have to check the Visa Bulletin in each of the subsequent months to see if the date has changed. Only if an immigrant visa is available based on your priority date can your residency case move forward to completion.
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| Comments |
 By
David @
Thursday, July 17, 2008 9:06 PM
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My father (a permanent U.S. resident) filed an I-130 petition for me in July 1999 and the petition was approved in September 2004 (almost a year after I entered the U.S. with a V-Visa). I'm 23 years old and that puts me under the 2B category in Visa Bulletin page. According to the Department of State, my visa number became available last month. However, I applied for adjustment of status in 2005! before my visa number was available! I even had an interview at a local immigration office (which went very smoothly) and did my biometrics as well. It's been a year and half since I did my interview in 2007. Is my I-485 application going to get denied now since I applied before my visa number was available? I don't get this, at the interview I was told that there was no problem, and that I would receive my green card within 6-8 weeks. Are these guys clueless?!
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By
Murali Bashyam @
Tuesday, July 22, 2008 5:35 AM
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Dear David - Usually, a person can only file an adjustment of status when their priority date is current. It could be that in your situation, the Immigration officers just didn't notice it. If you would like to discuss this in more detail, please call our office and ask to speak with me. Thanks.
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By
rb @
Saturday, September 06, 2008 11:59 PM
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i came here in the U.S. as a tourist on july 2000 in CA, then i went to jax, fl on august 2000, i transered there because my sponsor lives there. i was sponsored employment based on skilled worker. my lawyer said that im eligible for section 245i. so i fill out all the applications that needs to be filled out. petition for immigrant was approved. labor certification was approved. my priority date was october 18, 2001. i was approved to work also and i have work permit and social security number. but for the adjustment of status i was denied in 2004. i went and asked 3 different lawyers and told me that they cant help me. just for me, i was approved for petition for immigrant, approved for labor certification. immigration said that i was denied because i was not eligible for the section 245i. if i was not eligible, why did they approved all my applications. especially peitition for immigrant. if i was not eligible they should have told me at the first place. i dont know what to do right now. i know the information that im giving you might not be complete. i hope that u can help me.
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By
Murali Bashyam @
Monday, September 08, 2008 5:20 AM 
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Dear RB,
To be eligible for 245(i), you must have filed the labor certification prior to April 31, 2001. It looks like your labor certification was filed in October 2001 since that is your priority date.
The 245(i) issue only arises at the I-485 adjustment of status stage. That is why the previous two stages (labor certification and I-140) were approved and the I-485 was denied.
I hope this helps clarify things. Please call us if you want to discuss this in more detail.
Murali Bashyam
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