When Is Your Priority Date Becoming Current

Introduction

For beneficiaries of immigrant visa petitions, the priority date is the date that will determine when they will be one step closer to becoming Green Card holders.

Oftentimes, beneficiaries are unsure about how to check if their priority date has become current. Many beneficiaries get confused between the USCIS Processing Times and Department of State (DOS) Visa Bulletin.

In this article we look at what differentiates these two important user tools and explain how to check if your priority date is current.

USCIS Processing Time Vs DOS Visa Bulletin

USCIS Processing Times track how long USCIS is taking to adjudicate the many types of petitions and applications it receives. The DOS Visa Bulletin indicates who can apply for an immigrant visa based on the category that they have applied for the immigrant visa and their “priority date.”

• USCIS Processing Times — Posted by USCIS on their website, it lists the average time it’s taking takes each of USCIS’ Service Centers or Field Offices to process a class of petitions, applications, or other type of request. USCIS Processing Times are generally updated every 2-3 months.
• DOS Visa Bulletin — Posted by DOS, it provides the cut-off dates which govern visa availability; in other words, it establishes the approximate waiting times to obtain an immigrant visa or “green card” based on the date a petition that has been approved by the USCIS was filed. A new DOS Visa Bulletin is posted every month..

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Green Card Process

In a broad sense, most individuals who intend to become Permanent Residents (Green Card holder) of the U.S., must go through two steps:

STEP 1: An employer or relative must file an immigrant petition (I-130, I-140, or I-360) with USCIS on your behalf establishing your eligibility for a green card through employment or a family relationship. USCIS must approve that immigrant petition that has been filed on your behalf.

This is where the USCIS Processing Times tables come into the picture. Once an immigrant petition is filed by your employer or relative, you can check the USCIS Processing Time Information table for the Service Center the petition is pending at to see how long, on average, USCIS is taking to process the petition in your specific category.

For family-based cases and some employment-based cases, the date your petition is filed with USCIS becomes your “Priority Date.” For employment-based cases that involve a Labor Certification, the date the Labor Certification is filed with the Dept. of Labor is your priority date.

TIP
If, when checking for Processing Times of a filed petition or application, you see that your petition is outside normal processing times, you can contact USCIS’ National Customer Service Center to place an inquiry into why the application is beyond normal processing times

STEP 2: Once the petition is approved an immigrant visa number is assigned to you. Once your “priority date” becomes current, you can apply for your immigrant visa at a U.S. Consulate, or if you are in the U.S. in valid status or are otherwise eligible, through Adjustment of Status.

This is where the DOS Visa Bulletin comes into the picture. The Immigration regulations set the maximum number of immigrant visas (or green cards) that can be issued each year and in each category. These are further restricted by per-country limits (generally, each country can use up to no more than 7% of the worldwide limits). Because so many people want to live in the U.S. and have applied for the green card, some visa categories become “oversubscribed”, i.e. more people apply than there are green card numbers available. This creates a “backlog” or “retrogression.” In order to control the number of people applying for the immigrant visas each month, so that DOS stays within the quotas, the DOS sets cut-off dates each month for each immigrant visa category. These cut-off dates are published in the Visa Bulletin.

NOTE: Some countries, like China, India, Mexico and the Philippines, are more oversubscribed in certain categories than the rest of the world. For example, in the January 2017 Visa Bulletin, the cut-off date for Brothers and Sisters of U.S. Citizens (F4 in Family Sponsored) for most of the world was Nov 15, 2014. However, for those born in Mexico, the cut-off date was February 8, 1998 and the cutoff for the Philippines was March 1, 1995.

DID YOU KNOW?
Immigrant visa applications for “immediate relatives” of U.S. Citizens (spouse, children under 21 and parents) are exempt from the quota, i.e. an unlimited number of visas may be issued to individuals in this specific category. For applicants in this category, it is not necessary to check the Visa Bulletin as the applicant is immediately eligible to apply for an immigrant visa once the petition is approved

How To Read The Visa Bulletin

1. Find the category in which your petition was filed
   • Determine whether you should be looking at the Family Based chart or the Employment Based chart
   • Which category was your petition filed in? If it’s a family-based petition, determine which of the 5 categories the petition as filed under. If it’s an employment-based petition, determine which of the 7 categories the petition was filed under
2. Then using your country of chargeability (your country of birth, not citizenship), check what is indicated in the specific category for the specific country. If your country of chargeability is not specifically listed, use the Worldwide category labeled “All Chargeability Areas Except Those Listed.”
   Note: The country of chargeability is the country where you were born, regardless of your current citizenship or nationality. That means an Indian citizen born in France would have France as their country of chargeability.
3. If a category in the Visa Bulletin indicates “C” (Current), there is no backlog for that category for that month. If a category indicates “U” (Unavailable), then no immigrant visa applications for permanent residence will be accepted in that category during the month. If a category indicates a “date” (DDMMMYY), then applications for permanent residence will only be accepted by applicants whose priority date is on or before that date.

DID YOU KNOW?
“Cross-chargeability” means that certain individuals applying for an immigrant visa can use the country of birth of their spouse if it means they will become current sooner. For example, if an Indian national is married to a Canadian national and is in the EB-3 category, which is severely retrogressed for India, the Indian national can use Canada as his or her country of chargeability!

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Sample Visa Bulletin

To make things clearer, let’s look at some practical examples of using the Visa Bulletin.  We will use the January 2018 Visa Bulletin (Final Action charts) for our case examples:

Family-Sponsored	World-wide	China-mainland born	India	Mexico	Philippines
F1	15 MAR 11	15 MAR 11	15 MAR 11	01 MAY 96	01 JAN 05
F2A	01 FEB 16	01 FEB 16	01 FEB 16	01 JAN 16	01 FEB 16
F2B	01 DEC 10	01 DEC 10	01 DEC 10	15 AUG 96	01 JUL 06
F3	08 OCT 05	08 OCT 05	08 OCT 05	15 JUN 95	15 MAR 95
F4	22 JUN 04	22 JUN 04	15 DEC 03	01 NOV 97	01 SEP 94

 

Employment-Based	World-wide	China-mainland born	EL Salvador Guatemala Honduras	India	Mexico	Philippines
1st	C	C	C	C	C	C
2nd	C	01 FEB 16	C	08 DEC 08	C	C
3rd	C	15 SEP 14	C	01 DEC 06	C	01 MAR 16
Other Workers	C	01 FEB 07	C	01 DEC 06	C	01 MAR 16
4th	C	C	01 DEC 15	C	22 JUN 16	C
Certain Religious	U	U	U	U	U	U
Workers
5th Non- Regional Center (C5 and T5)	C	22 JUL 14	C	C	C	C
5th Regional Center (I5 and R5)	U	U	U	U	U	U

My Case Scenario
John

John was born in and lives in Mexico and is over 21.  His mother is a US citizen and lives in the US. She filed an I-130 petition Immigrant Petition for Alien Relative on his behalf on March 1, 2016. This petition would fall under the family based first preference or “F1” category (unmarried son or daughter over 21 of a U.S. Citizen).  The Petition is routed to the Vermont Service Center.  It is now January 1, 2017 and there is still no decision on the I-130. When can John hope to receive his green card?.

First, because the I-130 is still pending, it may be a good idea for him to check the USCIS Processing Times website to estimate how much longer he has to wait for a decision on the I-130. To determine how much longer he has to wait to obtain the green card, however, he needs to check the Visa Bulletin.

His priority date is 03/01/2016 (the date the I-130 was filed) and his country of chargeability is Mexico, where he was born.  According to the Visa Bulletin, the cut-off date for the F1 category for Mexico is 05/06/1996.  Since John’s priority date is not earlier than the cut-off date, he must wait to apply for an immigrant visa or adjustment of status until the cut-off date reaches his priority date (i.e. he must wait until the cut-off date is 03/01/2016 or later).  Unfortunately, John has a long wait ahead.

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My Case Scenario
Benjamin

Benjamin is from the U.K. and has an approved I-130 in third preference family-based immigrant petition or “F3” category (married son or daughter over 21 of a US citizen) with a priority date of Sept. 1, 2005.  According to the January 2018 Visa Bulletin, the cut-off date for the category in “All chargeability areas” is currently October 8, 2005.

According to the Visa Bulletin, Benjamin’s priority date is earlier than the cut-off date posted.  If he is currently in the U.S. and is in valid status or is otherwise eligible, he can immediately file for Adjustment of Status.  If he is residing outside the U.S., the National Visa Center should have already contacted him or the petitioner who filed the I-130 to start the consular processing application process.

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My Case Scenario
Eric

Eric is from China and has self-petitioned in the employment based 1st preference category or EB1 as an Alien of Extraordinary Ability.  His priority date, the date his I-140, Immigrant Petition for Alien Worker, was submitted, is January 1, 2017.  His I-140 was just approved.

According to the Visa Bulletin, EB1 is shown as being “C” or Current.  This means that Eric can immediately file for the green card.  In fact, based on current immigration law, if Eric was in the U.S. and the EB-1 category was Current when he filed the I-140, he could have filed the Adjustment of Status application together with the I-140 or “concurrently”.

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My Case Scenario
Betty

Betty is a Canadian citizen but was born in India. Betty’s employer has filed an I-140 petition in the employment based 3rd preference category or EB3.  Betty’s priority date is November 15, 2016. Recently, Betty married Matthew, who was born in Canada.  Betty and Matthew are in the U.S. in valid TN and TD status.

According to the Visa Bulletin, the cut-off date for those chargeable to India is December 8, 2008, which is well before Betty’s priority date.  This meant that Betty would have to wait many more years before she can apply for permanent residence.   Matthew, however, is chargeable to the worldwide category because he was born in Canada.  Under cross-chargeability, Betty can now use the chargeability of her husband.  According to the Visa Bulletin, the cut-off date for “all chargeability areas” for EB3 is “C” or current.  Because Betty can use her husband’s country of chargeability, her priority date is Current and she and Matthew can immediately file for Adjustment of Status!

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Conclusion

It is vitally important to remember that USCIS Processing Times and the DOS Visa Bulletin are two very different things and understanding the function and role each play will go a long way in helping you to navigate the immigrant visa process.

If you already have an immigrant visa petition pending but need advice on how to move forward, or would like to obtain a green card and want to discuss the different options available to you. contact VisaPro today

If you have questions specific to your case, we suggest that you consult with our experienced immigration attorneys.

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