Priority date

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For the concept of priority date in patent law, see priority right.

Priority date is a United States immigration concept. A common path to the green card in the United States is to obtain it through a family based or employment based petition, a very complex process that can take many years to complete. When a foreign worker, usually on a temporary work visa such as an H-1B with a U.S. employer, begins the green card process, the first step is to complete labor certification to prove that a qualified American worker could not be found to fill the position the foreign worker is taking. The labor certification process has undergone a number of changes in recent years, from the laborious supervised recruitment process, to the Reduction-in-Recruitment (RIR) process, and now to the much faster online PERM system. In all cases, the date the labor certification is filed (directly with the United States Department of Labor for PERM applications, or with a State Workforce Agency for RIR applications) is assigned as the individual's Priority Date. As soon as the labor certification is approved, the immigrant's employer may file an I-140 form Immigrant Petition for Alien Worker petition with the USCIS to establish the immigrant's eligibility to file the I-485 from Application to Register Permanent Residence or Adjust Status, i.e. the green card application itself.

The United States Department of State publishes a monthly visa bulletin [1] which lists cutoff priority dates for different immigration categories and birth countries. Only those intending immigrants with priority dates before the cutoff date are permitted to file their Adjustment of Status (AOS) applications and obtain their green card. The cutoff dates generally move forward over time as old cases are disposed of. However, in certain cases, such as if a large number of old cases work their way through the system at about the same time, the cutoff dates can actually retrogress (or roll back). If an individual already has a pending AOS application on file when a retrogression occurs that places the cutoff earlier than the applicant's priority date, USCIS sets the application aside and will not adjudicate it until the priority date is current again. As an example, after months of stagnation, in June 2007 the priority date cutoffs for employment-based second and third preference (EB2 and EB3) applicants (the bulk of employment-based green card applicants) advanced dramatically for all countries of birth. On the low end, the cutoff advanced eight months for immigrants from mainland China with jobs requiring Master's degrees. EB3 for India-born applicants has moved forward 25 months, the most of any category, thus impacting a huge number of workers with jobs requiring Bachelor's degrees.

For individuals starting the employment-based green card process now, country of birth and job requirements are paramount in determining how long the overall process will take. Individuals from countries other than China or India with jobs requiring a Master's degree can complete the entire process, from labor certification to receiving the green card, in as little as four months (in a best case scenario), if there is no backlog of visa availability, i.e., all priority dates are current. Workers from China or India with jobs requiring only a Bachelor's degree can expect to wait years after filing the labor certification and immigrant visa petition to become eligible to file the final application for the green card itself.

[edit] Recent Developments

On June 14, 2007 all the cutoff dates except Other Workers category became current: first July Visa Bulletin No. 107
On the morning of July 2, 2007 all employment-based visas became unavailable again, with July 1, 2007 being Sunday: second July Visa Bulletin No. 108
On July 17, 2007 all the cutoff dates except Other Workers category have become current again until August 17, 2007. [2]

On July 17, 2007 United States Department of State (DOS) issued the August Visa Bulletin No. 109. Although the August Visa Bulletin indicates that visa numbers for employment-based cases are “unavailable” for August, it states the following:

"After consulting with Citizenship and Immigration Services, the Visa Office advises readers that Visa Bulletin No. 107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining Employment visa number availability, and that Visa Bulletin #108 (dated July 2) is hereby withdrawn."

What this means is that the first July Visa Bulletin No. 107 which indicated that visa numbers were available for employment-based cases for all categories and for all individuals, irrespective of birth, (except Other Workers category) is still valid, and that second July Visa Bulletin No. 108 is nullified. For all practical purposes, the USCIS will now accept AOS cases from all individuals in the abovementioned categories.

Via USCIS Update it was re-iterated that USCIS has reversed its July 2 announcement that "the fiscal year 2007 employment-based visa numbers had been used up" and that "USCIS was going to refuse to accept adjustment of status filings during July". The United States Department of Homeland Security Secretary Chertoff advises that USCIS will keep the applications filed and will re-open filings for a 31-day period from July 18 through August 17, 2007, in order to provide the same filing window to those filers who would have had been eligible to file if the July 2 actions had not taken place. Filers will be able to pay I-485 form filing fees according to July fee schedule during the entire window period.