Green Card Quota Backlogs, Priority Dates, Employment-Based Preference Categories and Other Related Topics

What is the quota backlog?

The Immigration and Nationality Act sets limits on how many immigrant visas (green cards) may be issued each Fiscal Year (October 1 through September 30) in all immigrant visa categories except the family-based category of immediate relatives. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas in different preference categories (e.g., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of immigrant visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of the labor certification filing or if the category is employment-based but does not require a labor certification, according to the date the USCIS receives the I-140 Immigrant Visa Petition. Such dates comprise the “Priority Date.”

What are the different employment-based preference categories?

The different employment based preference categories are Employment-Based First Preference (EB-1), Employment-Based Second Preference (EB-2), Employment-Based Third Preference (EB-3), and Other Workers.

What does EB-1 mean?

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

What does EB-2 mean?

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Masters or Ph.D.) or a Bachelor’s degree and five years of progressive experience.  The employer’s job requirements for the position must minimally require such qualifications to perform the job duties – the actual degree credentials of the foreign worker does not determine whether or not the appropriate classification is EB-2. The focus for preference classification is based solely on the U.S. employer’s minimum job requirements.; (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected; and (3)  Those seeking a National Interest Waiver.  These are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the nation.  The labor certification process is waived for such applicants and they are permitted to self-petition (they do not need an employer to sponsor them).

What does EB-3 mean?

Employment-Based Third Preference (EB-3) includes: (1) Professionals (requiring a bachelor’s degree or a foreign equivalent degree); and (2) Skilled Workers (requiring two years of training or experience where relevant post-secondary education may be considered as training).

What does *other workers* mean?

Other Workers includes positions that require less than two years of training or experience.

What is a priority date?

If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the U.S. Department of Labor. If your category is employment-based but does not require a labor certification, then the priority date is established on the date the USCIS receives the I-140 Immigrant Visa Petition. However, in either situation the priority date does not attach to your case until the I-140 Immigrant Petition has been approved.

Why is the priority date important?

In order for an individual to obtain an immigrant visa, a visa number must be available. This is referred to as the priority date being “current.” The priority date is current if there is no backlog in the category, or if the priority date is earlier than the date listed as “current” in the U.S. Department of State’s Visa Bulletin. If the Visa Bulletin shows that there is a backlog of visa numbers, the priority date will establish the foreign worker’s “place in line” for an immigrant visa in the applicable visa category. Note that a link to the Visa Bulletin is available at http://larrabee.com/immigration-law-resource-links/ and is updated monthly. Individuals may sign up online to have the Visa Bulletin automatically e-mailed by the U.S. Department of State each month.

Can I get ahead on the quota backlog list?

There is no way to “get ahead” on the list, apart from filing an Immigrant Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until he/she is current on the Visa Bulletin before proceeding with filing the last step in the green card process. The last step is accomplished by filing an Adjustment of Status application, or by obtaining an immigrant visa at a U.S. Embassy or U.S. Consulate abroad (Consular Processing).

What is the difference between the visa category being U (Unavailable) and mm/dd/yy (quota backlog)?

“U” or “Unavailable” means that there are no more immigrant visas available at all in that category for the month. If there is a date noted (i.e. 07-01-03), it is considered to be the cut-off date, and that means that there is a “quota backlog”. Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.

What does C mean?

“C” or “Current” means that there is no quota backlog in the particular category and that there is an immigrant visa immediately available.

If the visa bulletin shows a date of 6-1-18 and my priority date is 6-1-18, is my priority date current?

No. In order for the priority date to be current, it must be a date earlier than the date published in the Visa Bulletin.

How often do the backlogs change and will they improve?

Each month, the U.S. Department of State issues the Visa Bulletin. When the bulletin is issued, usually mid-month, it will provide information that will take effect on the first day of the following month. (e.g., on 09-09-2010, the State Department released the dates effective as of 10-1-2010). Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that priority dates can also stay the same, they can move very slowly or progress by several months or years, and they can even move backward or retrogress. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

The cut-off date is 6-1-2009. Does this mean that it will take 10 years before the priority date will become current?

No. The length of time that it takes for a priority date to become current will depend on how many visas are used. Please see the answer to the above question “How often do the backlogs change and will they improve?”

I have an approved I-140 Immigrant Petition with my previous employer and my current employer is sponsoring me now for a green card. What is my priority date?

You may use the priority date attached to the approved I-140 Immigrant Petition filed by your prior employer. The Priority Date will be printed in the top portion of the Form I-797 Approval Notice. When a new I-140 Immigrant Petition is filed for you by your new employer, the old priority date can be attached to the new petition.

Visa availability is based on country. Is that country of citizenship or country of birth?

Country of Birth.

My spouse was born in a different country than I was. Since the case is based on my employment, does the country of birth of my spouse help me?

Yes, you may benefit from your spouse’s country of birth. For instance, if you were born in India, but your spouse was born in France, and there is a quota backlog for India but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth. This is referred to as cross-chargeability.

Both my wife and I were born in India and my priority date is not current. Our child was born in the United Kingdom and the priority date for that country is current? Can we use the country of birth of our child for eligibility?

No. You can use your spouse’s country of birth for eligibility. However, your child’s country of birth cannot be used.

I have heard that only those individuals from India and China are subject to quota backlogs. I was not born in one of those countries. Do quota backlogs apply to me?

Yes, quota backlogs can apply to everyone regardless of where an individual is born. While in the past the backlogs have typically affected nationals of certain countries more than others, the backlogs apply to all countries for the EB-3 preference category and some countries for the EB-2 preference category. This can change and one should review the Visa Bulletin to determine eligibility for adjustment of status or consular processing.

My employer has a labor certification pending on my behalf. Do quota backlogs affect the processing of the application?

No. The labor certification process is not affected by quota backlogs. There may be separate and unrelated backlogs at the U.S. Department of Labor in adjudicating such matters, but such backlogs are unrelated to quota backlogs.

The labor certification filed on my behalf was approved. Can the company still file the I-140 Immigrant Petition if the priority date is not current?

Yes. The filing and adjudication of an I-140 Immigrant Petition is not affected by the quota backlogs.

My I-485 Adjustment of Status application was already approved. However, the application of my dependent is still pending and my priority date is no longer current. Is the application of my dependent affected by the quota backlog since my application is approved?

Yes. Even though your case was approved, your dependent’s application is still based on your priority date. The USCIS cannot approve the dependent’s application until the priority date is once again current.

The quota backlogs were not in affect when I filed my I-485 Adjustment of Status application. Is it possible for the visa numbers to become quota backlogged and affect me?

Yes. The USCIS will accept an application if there is a visa number available according to the Visa Bulletin when the Adjustment of Status case is filed. However, the visa numbers can back up making your priority date unavailable and if this occurs your case will remain pending and the USCIS will not be able to adjudicate your case until your priority date is again current.

The I-140 Immigrant Petition and I-485 Adjustment of Status application were concurrently filed and both are pending at the USCIS. Will the I-140 Immigrant Petition be processed if the priority date is no longer current and the I-485 Adjustment of Status application cannot be approved at this time?

Yes. The USCIS will continue to process the I-140 Immigrant Petition and it can be approved, regardless of the quota backlog.

Can I inquire regarding the status of an I-485 Adjustment of Status application currently pending at the USCIS if I am subject to a quota backlog?

No. Under the USCIS guidelines, inquiries may not be made on a case unless the priority date is current.

If my I-485 Adjustment of Status Application is still pending, and my priority date is no longer current, will the USCIS still issue a biometrics appointment notice and/or a Request for Evidence (RFE)?

They may. The USCIS can still process the case but cannot approve it until the priority date is current. Therefore, you may receive Requests for Evidence or biometrics appointment notices. It is important to comply with these requests. Even though the case cannot be approved, it can be denied for failure to provide information or failure to show up for a biometrics appointment.

My I-485 Adjustment of Status application has been pending a long time due to security and background checks. Once they clear, can my case be approved if my priority date is no longer current?

No. Even though the only issue may have been the security and background checks, the USCIS cannot approve the case until the priority date is current.

Can I still obtain EAD cards and AP documents if my I-485 Adjustment of Status application is pending and I am subject to a quota backlog?

Yes. As long as you have a pending I-485 Adjustment of Status application at the USCIS, you are eligible to apply for and receive EAD cards and AP documents.

My Adjustment of Status application is pending and I recently married. Can I add my spouse to the application (i.e., can my spouse file his/her I-485) if my priority date is not current?

No. In order for a dependent to file an Adjustment of Status application the priority date must be current. If your pending Adjustment of Status application is approved prior to your marriage, your spouse will not be able to immediately immigrate to the U.S. They will instead fall within the family immigration process and will be subject to other backlogs. It is necessary to marry prior to the Adjustment of Status application being approved for your spouse to be eligible to obtain a green card with you.

If I am not able to file the I-485 Adjustment of Status application due to quota backlogs, is there another way for my H-4 spouse to obtain work authorization?

At this time, an EAD application based on an Adjustment of Status application cannot be filed unless an I-485 Adjustment of Status application is pending. Therefore, your spouse will not be eligible for an EAD card on that basis and will need to seek independent work authorization (e.g., H-1B).

If the I-140 Immigrant Petition filed on my behalf is still pending and my priority date becomes current, may I file an Adjustment of Status Application?

Yes, if you have an I-140 Immigrant Petition pending and your priority date becomes current, you and your dependents may file your Adjustment of Status Applications as long as the priority dates remains current.

I am running out of H-1B time. What will happen to my H-1B status if the quota backlog holds up my green card application?

Immigration regulations provide some relief in this area. If you have an approved I-140 Immigrant Petition and you are unable to proceed with the I-485 Adjustment of Status application due to quota backlogs, the company is eligible to apply for extension of H-1B time, in increments of up to three years, on your behalf. Your dependent’s H-4 status may also be extended.

If you are not the beneficiary of an approved I-140 Immigrant Petition, you may still be able to obtain extensions, in one year increments, as long as 365 days or more have passed since the filing of a labor certification application with the U.S. Department of Labor or the filing of an I-140 Immigrant Petition with the USCIS, both of which must still be pending adjudication.

If I am not able to file the I-485 Adjustment of Status Application and then I lose my job or change jobs, does 204(j) portability protect me?

No. In order to take advantage of section 204(j) portability (also commonly referred to AC-21 portability), the I-485 Adjustment of Status application must be filed and pending with the USCIS for more than 180 days. The I-140 Immigrant Petition must also be approved.

Due to the quota backlogs, I want to review my options for immigrating through a U.S. citizen. I have minor U.S. citizen children. Can they sponsor me for permanent residency?

Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old. However, if you have a U.S. citizen child who is over 21 or a U.S. citizen spouse, please contact our firm to discuss your options.