The first thing to accomplish if you wish to apply for permanent residency or an immigrant visa is to acquire a priority date as soon as possible. An individual’s priority date is the initial date when the individual or his employer submitted the application for an immigrant visa to the U.S. government.
Immigrant visas are issued by the United States using an allocation scheme under which both employment and family based petitions are processed. Generally, the applications for such visas immensely exceed the availability of the visas, thus, large build-ups occur in the various visa classifications. Consequently, applicants are required to wait for obtaining the said visas.
Establishing A Priority Date
In the Family-based categories a priority date is established at the time the petitioner/ relative submits a visa petition (form I-130) on behalf of the beneficiary.
In the Employment-based categories, a priority date is established as follows:
- When the employer submits an application for an Labor Certification on behalf of the beneficiary; or
- When the employer or the beneficiary submits a visa petition (Form I-140) to the INS where no labor certification is necessary.
Current Priority Dates
Each month, a list of dates is circulated by the U.S. Department of State, on the basis of which U.S. Consulates throughout the world can issue visas in different immigrant categories. These dates are known as Current Priority Dates.
The latest State Department’s Visa Bulletin shows the priority dates for each month.
(a) In the event, the applicant changes his employment prior to his I-140 approval, is it still possible for him to maintain his Priority Date?
Ans. If the case entails alien labor certifications then the answer is ‘No’! However, if the case does not entail alien labor certification, and the applicant or his employer has filed an I-140 visa petition, the applicant or his new employer can file a new I-140 and keep the previous Priority Date.
(b) What document illustrates the Priority Date?
Ans. On approval of an employment-based visa petition or a family-based visa petition, the USCIS dispatches a Notice of Approval (Form I-797), to both the applicant and his lawyer. This document illustrates the Priority Date.
(c) In case, an employment-based applicant’s priority date is not yet current, can he adjust his status or go in for Consular Processing?
Ans. The applicant cannot adjust his status or consular process till his priority date is current.
(d) In the event that an applicant’s status may alter from one preference category to another, e.g. from under 21 and unmarried to over 21 and married, what would be the status of the applicant’s Priority Date?
Ans. If the parent was a citizen, throughout all alterations in categories, the applicant’s priority date stays unchanged, i.e. the day his parent first filed a petition. However, if the applicant’s parent was a permanent resident, at the time of submission of the petition, then the filing of such a petition places the applicant in the Family second preference category. When the applicant marries, the visa petition stands terminated automatically, as permanent resident parents are not permitted to petition their married children. However, if the parent had naturalized prior to the applicant’s marriage, the initial petition remains valid and the applicant is classified in the Family third preference category.
INS InfoLink :
The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth PLLC and the viewer.