Priority Dates, Immigrant Visa Availability – What Does It All Mean?

Murali Bashyam

Having been immigration lawyers for over a decade, we have provided advice to thousands of immigrants on a variety of immigration matters. One of the most difficult areas of immigration law to explain to an intending immigrant is the concept of priority dates and immigrant visa numbers. If you have had a consultation with a lawyer on obtaining permanent residency, you may have heard a lawyer say, “you have to wait until an immigrant visa number is available and your priority date becomes current.” That sounds nice, but what do all of those words mean?
A ‘priority date’ is the date a labor certification or immigrant petition (I-140 or I-130) is filed on your behalf. The date the case is received by the government agency is your priority date. For example, if you are an employee of Corporation Inc. and they file a labor certification for you that is received by the Department of Labor on January 11, 2008, that becomes your priority date for the rest of your case. If a labor certification is not needed for your case, the date an I-140 Immigrant Petition for Alien Worker is filed on your behalf is the priority date. In the family immigration context, if you are a U.S. permanent resident and you file an I-130 Petition for Alien Relative for your spouse in Russia on January 10, 2008, that date becomes your spouse’s priority date. These are just a few examples of how a priority date can be set for an intending immigrant.
An ‘immigrant visa’ is the legal term for permanent residency or “green card“. The U.S. government created per-country limits on immigrant visa or permanent residency availability. There is a maximum number of family-based and employment-based immigrant visas that can be issued to citizens of each country in a fiscal year. If the demand for immigrant visas exceeds the numbers allotted for a country in that year, an immigrant visa would be ‘unavailable’.
So what does an ‘immigrant visa’ have to do with a ‘priority date?’ The Department of State issues a Visa Bulletin every month that provides the date of immigrant visa availability for all employment and family-based preference categories. If an intending immigrant has a priority date that is on or before the date listed in the Visa Bulletin for his/her preference category and nationality, then a visa is available for that person. An available visa would allow the applicant to apply for an I-485 adjustment of status or initiate consular processing of their residency application outside the United States.
For example, Corporation Inc. files a labor certification on your behalf on January 10, 2008 and it was received by the Department of Labor on January 11, 2008. That is your priority date. Your labor certification was then approved on June 15, 2008. Your employer can file an I-140 Immigrant Petition for Alien Worker on your behalf once the labor certification is approved. However, whether or not you can file an I-485 Adjustment of Status Application depends on whether an immigrant visa is available to you. You would need to look at the Department of State Visa Bulletin for June, check the priority dates for your preference category and country, and see if your priority date is on or before that date. If so, you can go ahead and file the I-485 adjustment because a visa number is available. If your priority date is later than the date in the Visa Bulletin for your preference category, you will have to check the Visa Bulletin in each of the subsequent months to see if the date has changed. Only if an immigrant visa is available based on your priority date can your residency case move forward to completion.

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