Click Here for Up to Date COVID-19 Information

For the health and safety of our team, FordMurray attorneys and legal analysts will be working remotely at this time. For contact information, click here.

Understanding Priority Dates: How Quotas Impact EB-1 and NIW Petition Timelines

Traditionally, EB-1 and NIW green card preference categories have been an expeditious way for employers to sponsor foreign employees with extraordinary ability for permanent resident status, and for foreign nationals with extraordinary ability to self-petition for a green card. But as immigration policy has fluctuated under President Trump’s administration, so have the timelines of these coveted green card programs.

In this article, I will explain how priority dates impact green card petitions, and what you can do to work around visa bulletin backlogs.

First, a refresher on immigration terminology.

Green Card Glossary

Adjustment of Status: The green card application itself, filed on form I-485. A green card application based on an extraordinary ability or national interest waiver petition has two steps. First, an I-140 petition is filed to determine whether an individual qualifies for the preference category. Once the petition is approved, the individual can file for an adjustment of status using Form I-485 – the adjustment of status changes their nonimmigrant visa status to legal permanent resident status.

Priority Date: In this context, the priority date is the date United States Citizenship and Immigration Services (USCIS) receives the I-140 petition. The priority date will be printed on the I-140 receipt notice.

Final Action Date: The final action date is the priority date designated by the U.S. Department of State in the monthly Visa Bulletin, and controls what adjustment of status cases are eligible to be finally adjudicated and/or who is eligible to file an adjustment of status. Applicants with priority dates on or before the final action date may proceed with filing the Form I-485 for adjustment of status. If the final action date is current, indicated by a “C”, all applicants may file, regardless of priority date. Final action dates are determined by the Department of State based on the number of applicants for permanent residence or immigrant visas received during the fiscal year.

Visa Retrogression: Visa retrogression is when priority dates move backwards.

All Chargeability Areas: The category of employment-based applicants from countries other than mainland China, India, Mexico, the Philippines, El Salvador, Guatemala and Honduras. Applicants from these countries are subject to country-specific priority dates.

Priority Dates and Adjustment of Status

To understand WHY priority dates shift, it’s important to understand the immigrant visa process. When priority dates are current – marked as “C” on the USCIS visa bulletin an immigrant visa applicant with any priority date can file for adjustment of status or apply for an immigrant visa if they are outside the U.S. Traditionally, EB-1 applicants filed their I-140 petition and Form I-485 concurrently – meaning both forms were filed to be processed by USCIS at the same time. Due to increasing demand and fluctuating priority dates under the Trump Administration, this practice has become virtually impossible for EB-1 applicants.

When a category experiences visa retrogression, the priority date for that category moves backwards. For example, under the November visa bulletin, the priority date for “all chargeability area” EB-1 applicants is July 1st, 2018. If you have a priority date of July 1st2018 or earlier, you may file your Form I-485; if you have a priority date of July 2nd 2018, you must wait for the visa bulletin to reach that date during another month. Priority dates do not always move forward – the next visa bulletin could move the priority date back by a month or a year. It is important for those who have a pending or approved I-140 petition to check the visa bulletin monthly and to file the Form I-485 as soon as a priority date becomes current.

To make things more complicated, USCIS announced that for October and November 2019, employment-based applicants must use a different set of dates to determine whether or not they can file their I-485 applications- these dates are called the “Dates for Filing” and are also included on every monthly Visa Bulletin. Luckily for any EB-1 applicants, the Dates for Filing for October and November 2019 are a year ahead of the Final Action Dates, and would enable anyone with a priority date of July 1st 2019 or earlier to file their I-485s. The use of the Dates for Filing priority dates is fairly unusual for employment-based petitions, and it is unclear whether or not USCIS will continue to allow applicants to use these dates in December 2019.

The ability to file an adjustment of status application, even if the wait for a green card may be years long, cannot be overstated. While a priority date from an I-140 petition guarantees a “place in line” for a future green card filing and allows some applicants with H-1Bs to extend their status, it does not provide the ability to remain and work in the U.S. However, once an adjustment of status application is filed, the applicant gains the benefits of being a “pending adjustment applicant” which includes work and travel authorization for as long as their green card case is pending. The ability to file the I-485 means a chance to continue a career and life in the U.S. without having to worry about the loss of work authorization or underlying nonimmigrant status.

Extraordinary ability and NIW petitions make up a cornerstone of U.S. immigration policy – allowing the best and the brightest to immigrate to the United States. EB-1 and NIW categories make up the largest percentage of employment-based green cards, and even as petition adjudication has changed, it has not undermined the value of these green card categories.

If you have questions about your EB-1 or NIW petition, or would like help determining if you qualify, contact me for a complimentary consultation. I am happy to help.