The Importance of the Priority Date

One issue of concern for many clients in the employment-based immigration process is the Priority Date. With the recent retrogression in the EB-1 category and now slow advancement of EB-1 and EB-2 China & India this year, obtaining an earlier Priority Date is more important than ever.

 At LPY Law Group, we want to help our clients fully evaluate their immigration options. In past years, many clients had contacted our firm seeking to file EB-1 only, as they were discouraged by the visa backlog in the EB-2 China & India category. In certain instances, the client may have a very good EB-2 National Interest Waiver (NIW) case with room for improvement for EB-1. They may choose to forego EB-2 NIW and just wait for their credentials to improve to apply for EB-1. We have been able to help these clients understand the benefits of filing EB-2 NIW and why it is a good strategy within the overall immigration context. By taking advantage of submitting an EB-2 NIW petition first, clients may obtain an earlier Priority Date while waiting to amass their credentials before filing EB-1. By doing so, clients can submit EB-1 I-485 using the earlier NIW priority date.

Below, we will delve into this subject in more detail.

Recent Changes Affecting Priority Date

On January 2017, the United States Citizenship and Immigration Services (USCIS) implemented new regulations designed to clarify Department of Homeland Security (DHS) policies and enable U.S. employers to retain high-skilled workers. An initial goal of the ruling was to improve employee portability and enhance the employers’ ability to hire and retain employees during the immigration process. The rule adds much needed changes such as adding grace periods after termination and the ability to change employers during the green card process.

Why Priority Date is Important

Priority dates matter because they determine where a foreign national is placed in line to wait for their immigrant visa (“Green Card”). Congress has set out how many Green Cards can be given out in any fiscal year. The total number of allotted Green Cards are further subdivided between family-based petitions and employment-based petitions. Even within those classes, the allotment is further sub-divided between different preference categories—each category getting its own allotment of visa numbers. The sub-categories allocate the available Green Cards by the world’s countries and the different categories of sponsorship.

How Priority Date is Established

According to the DHS, regulations have provided that the Priority Date for an employment-based petition accompanied by a labor certification application “is established when the labor certification is accepted for processing by [the Department of Labor].” Generally, the priority date for an employment-based petition is the date on which such petition is properly filed with the USCIS.

(Please see 8 C.F.R. § 204.5(d) for the regulations in detail.)

Retaining a Priority Date

An individual may use the Priority Date from an approved EB-1, EB-2 or EB-3 I-140 petition for a subsequently approved EB-1, EB-2 or EB-3 petition if the earlier approved I-140 was not revoked for fraud or misrepresentation.

The beneficiary of an approved Form I-140 petition will not retain his or her Priority Date for subsequently filed Forms I-140 on his or her behalf if the initial Form I-140 is revoked because of any of the following: 1) fraud or misrepresentation of a material fact; 2) revocation of the approved labor certification application by the Department of Labor; 3) invalidation by the USCIS or Department of State of the approved labor certification that accompanied the petition; or 4) a determination by the USCIS that the petition approval was based on a material error.

(Please see 8 C.F.R. § 204.5(e) for the regulations in detail.)

The Issue of Automatic Petition Revocation

The new rule “amends existing automatic revocation regulations to prevent Form I-140 petitions that have been approved for 180 days or more from being automatically revoked based solely on the withdrawal of the petition by the petitioner or the termination of the petitioner's business.” Additionally, such petitions will remain valid for purposes of priority-date retention unless the approval of the petition is revoked on any of the grounds specified in the above section.

This rule change better protects the interests of beneficiaries of approved Form I-140. The DHS explains that such a petition will generally remain valid for the following purposes: Form I-140 portability under section 204(j) of the Immigration and Nationality Act; extensions of status for certain H1B nonimmigrants beyond the 6-year statutory limit under sections 204(c) and 106(a) and (b) of AC21; and eligibility for employment authorization in compelling circumstances under the amended 8 C.F.R. § 204.5(p).

With the changes, the amended regulation makes clear that an approved Form I-140 that is subject to withdrawal or business termination does not, on its own, constitute a bona fide offer of employment related to the petition. This means that the beneficiaries of the petitions must either (1) have new Forms I-140 filed on their behalf, or (2) if eligible to exercise section 204(j) portability, have new offers of employment in the same or similar occupational classification.

Verifying Where Your Priority Date Falls

The availability of each type of preference category are illustrated in charts published by the State Department each month in a “Visa Bulletin.” When a date is printed in a certain category, if a foreign national’s Priority Date is on or earlier than the listed date, they can proceed with the final stage of their Green Card case. The “C” on the chart stands for “current” meaning that no matter what the priority date, foreign nationals in the U.S. can submit their adjustment of status application to USCIS.

The Visa Bulletin is released about two weeks before the calendar month to which it corresponds—giving everyone a heads up about what next month’s availability will be. Certain countries such as India, China, and Mexico are broken out separately from other countries in the charts. This is because there are more people from those countries immigrating to the U.S. and thus the numbers allotted to those countries become extra backlogged.

Conclusion

Priority Date retention, if done properly, can provide a huge benefit to individuals undergoing the employment-based sponsorship process, particularly for nationals of India and China who are subject to long visa backlogs. With an understanding of how a foreign national’s Priority Date is assigned and how it can be retained, it makes sense to start the immigration process as soon as possible to obtain the earliest Priority Date. With the recent and anticipated ongoing retrogression in the EB-1 categories, many of our clients have benefited from the ability to retain their Priority Date from previous EB-2 I-140 approvals to submit I-485 applications based on more recent EB-1 approvals.

Any individual interested in employment-based Green Card should discuss their potential case with an experienced immigration attorney proficient in employment-based immigration. The attorneys of LPY Law Group will help guide you through this process and ensure to the best of our ability that you obtain an earlier priority date on your path to a Green Card. Contact us for a free evaluation.