Key Permanent Visa Concepts: Priority Date

 

A priority date is established on the date a PERM Labor Certification is filed with the U.S. Department of Labor (for EB-2 and EB-3 cases) or when an I-140 petition is filed with the USCIS (for EB-1, EB-4, EB-5 and any other employment-based immigrant visa petitions not requiring a PERM Labor Certification). The priority date determines a person’s place in line in a specific employment-based or family-based preference category. Priority dates are also allocated based upon a person’s country of birth, not nationality. For example, a person applying for Second Preference Employment Category (EB-2) with a Japanese passport, but born in India would be classified under the Second Preference (EB-2) India quota.

Due to the current quota system, when an I-140 petition is approved, a person may need to wait until his/her priority is at the “front of the line”.

Monitoring the Priority Date

Around the middle of every month, the U.S. Department of State (DOS) publishes the Visa Bulletin which summarizes the availability of immigrant numbers. Allocations of immigrant visa numbers are made in chronological order of priority date (i.e., date of filing the PERM application) under the numerical limitations imposed by law.

Section 201 of the Immigration and Nationality Act (INA) imposes a worldwide annual limit of 140,000 employment-based immigrant visas. Section 202 of the INA prescribes that the per-country limit for all immigrants from a country be set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620 per annum.

If the demand for available immigrant visas in a particular visa preference category exceeds supply, an immigrant visa cannot be issued until the Visa Bulletin publishes the priority dates that can be allocated an immigrant visa. This is called the cut-off date. Only applicants with a priority date on or earlier than the cut-off date in his/her preference category may be allotted an immigrant visa number.

If an individual’s priority date is indicated as “C” in the Visa Bulletin, this means there are immigrant visa immediately available for persons in the listed classification. The “C” stands for “Current”. If the Visa Bulletin shows a “U” for a particular preference category, this means immigrant visas are unavailable. The “U” stands for “Unavailable”.

An additional consideration is a person’s nationality. If a person is a national of China, India, Mexico or the Philippines, there may be a longer wait to file the I-485 because high demand for immigrant visas from these countries greatly outstrips supply on a regular basis.