Priority Date

Published on: January 3, 2019

For now, USCIS accepts employment-based adjustment applications based on filing cut-off date

USCIS announced that in January the agency will accept employment-based adjustment of status applications based on the filing cut-off date instead of the final action cut-off date. This will allow foreign workers to file for adjustment of status if their priority date predates the filing cut-off date. USCIS has a grim view of February, however, and on its website notes that as soon as February 2019, it anticipates to revert back to final action cut-off date. Although USCIS will accept the filing for adjustment of status based on the filing cut-off date, it cannot approve the adjustment of status until the final action cut-off date becomes current.

The backlogged employment-based categories moved by a few days to a few months, but the unconscionable wait for people born in China, Philippines, and especially India, continues. The EB-1 category of priority workers that groups aliens of extraordinary abilities, outstanding professors and researchers, and multinational executives and managers, is backlogged for all immigrants. It did inch forward a few days to a few weeks depending on the country of birth. For example, the priority date for India-born priority workers moved from January 1, 2010, to April 1, 2010, which hardly leaves hope that India-born workers will get their green card before retirement age. Our immigration system makes it easier and much faster for unskilled workers born elsewhere to receive a green than India-or-China-born professionals, including doctors, engineers, and even people with extraordinary abilities like Nobel Prize winners.

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Published on: September 9, 2015

USCIS will permit employment based applicants to file earlier for adjustment of status

By Zneimer & Zneimer, P.C.

On September 9, 2015, USCIS announced revised procedures for determining when applicants can file for Adjustment of Status. Currently, a person cannot file for adjustment of status until his or her priority date becomes current. Under the revised guidelines, the USCIS will permit employment-based applicants to file for adjustment of status at an earlier date determined by a cut-off date in the Visa Bulletin on a separate chart.

In coordination with Department of State, the USCIS will monitor the two charts per visa preference category that will be published in the DOS Visa Bulletin:

Application Final Action Dates (dates when visas may finally be issued); and
Dates for Filing Applications (earliest dates when applicants may be able to apply).

The USCIS will monitor the visa numbers and will include cutoff dates in the Department of State Visa Bulletin Chart. Each applicant can use the chart to determine whether he or she could apply for adjustment of status. The October 2015 Visa Bulletin currently shows the two charts.

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Published on: April 14, 2015

BIA says alien cannot keep priority date from withdrawn or revoked I-140 petition

By Zneimer & Zneimer, P.C.

In the non precedential decision In re Grace Estrellado, the Board of Immigration Appeals states that alien may not utilize the priority date form her original I-140 petition because it was withdrawn by her prior employer and the USCIS revoked it.

Background

The case involved an alien who had an approved I-140 petition for which the priority date was not current. She had a prior I-140 petition with January 10, 2006, priority date, but the prior employer had withdrawn the petition, and the USCIS had revoked its approval, following the withdrawal. Nevertheless, the foreign national argued to the immigration judge that she can use the old January 10, 2006 priority date and apply it to the new I-140, so that she can adjust status right away as the old priority date was current. The immigration judge determined that because the first I-140 had been withdrawn and the approval revoked, the alien could not use the old priority date for the new petition. He also denied the alien a continuance because the new priority date was far into the future.

Analysis

The Board of Immigration Appeals, applying de novo standard of review to the legal issues, agreed with the immigration judge that the alien cannot use the old priority date because the first I-140 had been withdrawn. The foreign national argued that the regulations provide that she could keep the old priority date. She cited 8 C.F.R. 204.5(e) in support of her proposition.

This regulation reads:
(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

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