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Priority Dates and Preference Classes Explained

Q: What is the Priority Date?

A: The priority date is the date the first paperwork for permanent residence is filed with a government agency.

For an Employer-sponsored case, this is either the date a labor certification is first filed with the Department of Labor, or if not a labor certification-based case then the date the immigrant petition (most often an I-140 Immigrant Visa Petition) is first filed with USCIS.

For a family-sponsored case, this will be the date the I-130 Petition for Alien Relative is filed (this may or may not be the same date as the I-485 is filed).

Q: Why is the Priority Date important?

A: The Priority Date establishes the foreign national's place on line for an immigrant visa. There are limited numbers of immigrant visas available for each of the various categories. These categories are called "Preference Classes."

Each preference class has its own queue for immigrant visas, and the priority date and the preference class of the petition determine how long the person being petitioned for has to wait for an “immigrant visa” – a requirement to process the final phase of any green card case – to become available. The queues for an available immigrant visa are a separate issue from processing queues- how long it takes the government agency involved to process ease phase of a case.

After processing of the initial stage or stages of a green card case have been completed, a foreign national may in some cases find him- or herself waiting waiting many years more before an immigrant visa becomes available and processing of the final stage can begin. Or, depending on visa availability for their particular preference class, not needing to wait at all.

Q: What are Preference Classes?

A: Preference Classes are numbered categories which define types of immigrant visas. There are separate sets of preference classes for family-based immigration, employment-based immigration, and – although we won’t discuss these here – the Diversity Visa Lottery..

The case must fit into one of the preference classes for an immigrant petition to be approvable, and the preference class into which it fits must be indicated on the form filed for that petition (the I-140 for employment-based petitions, the I-130 for family-based petitions).

The preference classes for employment-based I-140 Immigrant Visa Petitions are:


First Preference
Alien of Extraordinary Ability
Outstanding Researcher
Multinational Executive or Manager
Second Preference
Advanced Degree Professional (job
requires at least a Master's degree)
Alien of Exceptional Ability
Third Preference
Professional (job requires at least
a four-year Bachelor's degree)
Skilled Worker (job requires at
least two years of experience)
Fourth Preference
"Special Immigrants" - 11 different
situations pertaining to niche groups which occur somewhat less frequently
Fifth Preference
Alien Investors (those creating
U.S. Employment Opportunities)


The preference classes for family-based I-130 Petitions for Alien Relative are:


First Preference
Unmarried Sons and Daughters of U.S. Citizens
Second Preference
Part "A": Spouses and Children
(under 21 years of age) of U.S. Permanent Residents
Part "B": Unmarried Sons and
Daughters (over 21 years of age) of U.S. Permanent Residents
Third Preference
Married Sons and Daughters of U.S. Citizens
Fourth Preference
Brothers and Sisters of Adult U.S. Citizens


Q: How are the Available Immigrant Visas Allocated Between the Preference Classes?

A: There are a certain number of immigrant visas allotted to each preference classification in both the family and employment categories. Within each preference classification, a certain number of immigrant visas are allotted to each country.

Sometimes, certain countries with high levels of immigration to the U.S. become "oversubscribed" - more people "charged to" that country want immigrant visas than there are immigrant visas to go around - before other countries.

The country to which a foreign national is "charged" or counted against is the foreign national's country of birth (not current citizenship or nationality). Countries which often become oversubscribed more often than most other countries include India, Mexico, the Philippines, and sometimes China. Availability for these countries is broken out separately by the U.S. State Department on its web site.

Q: How do the Priority Date and Preference Class come together to determine how long someone must wait for a green card?

A: As discussed above, the act of filing the first petition or application for permanent residence (labor certification, I-140, or I-130) establishes the priority date.

If you have ever been in a situation where you were required to take a ticket to await service (such as a deli counter at the supermarket, or the Motor Vehicle Department in your state), think of the act of filing a first petition or application as taking a numbered ticket from the machine. The date the petition or application is received by the agency where it was filed is your number, or place on line.

Every month, the U.S. Department of State, which controls immigrant visa availability, updates its web site with the date which is now "current" for each employment- and family-based preference class discussed above. Think of this web page as the "now serving" display at the deli counter or a state Department of Motor Vehicles. The date displayed for your preference class must be at your priority date (or more recent) before an immigrant visa number is immediately available for you.

For instance, if a relative filed an I-130 Petition for Alien Relative on your behalf in the Second Preference Part "B" category which was first received by the government on June 1, 1998, and when this case is approved the State Department web page lists the date of May 1, 1998 for the Family-based Second Preference Part "B" category, then your priority date is not yet current but should be relatively soon. When the Second Preference Part "B" category is updated from May 1, 1998 to a date on or after June 1, 1998, you are "now being served" - you may now file an I-485 Application to Adjust Status to Permanent Residence if eligible (or process through a consulate abroad, if you can do this without becoming subject to the three or ten year bar).

Q: How do backlogs in availability of Immigrant Visa numbers cause delays in how long it takes to get permanent residence?

A: When an immigrant visa number is immediately available, an Application to Adjust Status to Permanent Residence may be filed in the U.S., if eligible, or the foreign national may process through a consulate abroad.

The delay is often caused when an immigrant visa isn't immediately available for a petition of a given preference class for a person of a given country of birth at the time the immigrant visa is to be filed.

Filing of the I-485 Application to Adjust Status to Permanent Residence along with the petition for the I-140 Immigrant Visa Petition is permitted, but this is possible only where there is an immediately available immigrant visa number.

Similarly, where an I-130 Petition for Alien Relative is filed for an immediate relative family-based case, the I-485 Application to Adjust Status to Permanent Residence may be filed simultaneously (but this is not true for other family-based cases).

Of course, if processing through a consulate aboard rather than in the US through the Adjustment of Status process, the processes must be consecutive rather than concurrent (the first-stage immigrant petition must be approved before the consular process may begin), even if an immigrant visa is immediately available.

Q: Can you provide examples of how this all actually works?

The following examples of how this works in practice assume that an I-140 is taking one year through the USCIS Regional Service Center which will process the case and that an I-485 is taking two years.

We will also assume that immigrant visa availability progresses forward at the rate of one month for every month waited - this is usually not the case; there can be no movement for several months (or even years) at a time, or availability can jump forward several months at once. When we say that availability is "current", we mean that there is no backlog in visa availability for petitions of the preference class involved for people of the foreign national's country of birth:


Situation
Filing
Result
Likely
Time For Approval
I-140 filed in a preference class for which
availability is current at time of filing, and remains current throughout
the case.
I-140 and I-485 can be filed together. Two Years (the I-140 and the I-485 are processed
concurrently)
I-140 filed in preference class for which availability
for the foreign national’s priority date is backlogged six months
at the time of filing. Six months later, it progresses to the priority
date of the foreign national, thus making a visa available.
I-140 filed first, I-485 can be filed once immigrant
visas become current for the foreign national’s priority date
– even though the I-140 isn’t yet approved.
Most likely two and a half years, possibly a
little earlier.
I-140 filed in preference class for which availability
for the foreign national’s priority date is backlogged eighteen
months at the time of filing. Six months after the I-140 petition is
approved, an immigrant visa becomes available (numbers “become
current”).
I-140 filed first, upon approval must wait until
immigrant visa available before filing I-485.
Three and a half years (one year for I-140 approval,
six months before the priority date becomes current, then two
years for the I-485).
I-130 filed for spouse of a US citizen. Since there is no numerical limitation on spouses
of US citizens, the I-485 can always be filed simultaneously for these
cases.
However long the local district office is taking
to process this type of case.
I-130 filed for a relative of a citizen or a
permanent resident in the 2nd, 3rd, or 4th Preference Categories where
availability is significantly backlogged.
I-130 filed first, upon approval must wait until
immigrant visa available before filing I-485.
However long the local district office
is taking to process the I-130, plus the remaining time for this
classification to become current for someone from the country
of birth of the foreign national, plus however long the local
district office is taking to process the I-485.


We hope that this answered your questions about Priority Dates and Preference Classifications - if you have additional questions that you would like to see addressed here, please contact us!




Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.