Priority dates and visa availability: when can a green card case move forward?

Who waits in line, and who does not

Immediate relatives of US citizens (spouses, unmarried children under 21, and parents of a citizen who is at least 21) are not subject to the worldwide levels. USCIS’s Policy Manual says a visa is always immediately available to them.

Everyone in a preference category waits for a number: the family preference categories F1 to F4, the employment-based categories (including EB-1A extraordinary ability and the EB-2 National Interest Waiver, or NIW), and the Diversity Visa program. The Policy Manual says a queue forms when demand in a category or country is higher than the supply for the year.

Sources: INA 201(a) to (e), 8 U.S.C. 1151; USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C

The annual limits in INA 201

Section 201 of the Immigration and Nationality Act (INA) sets worldwide levels for each fiscal year, which starts on 1 October:

• Family-sponsored: 480,000 minus the immediate relatives who immigrated the previous year (and a parole adjustment), plus unused employment numbers, but never less than 226,000.
• Employment-based: 140,000, plus any family-sponsored numbers left unused the previous year.
• Diversity: 55,000.
• No more than 27 percent of a year’s family or employment level can be used in each of the first three quarters.

Sources: INA 201(a) to (e), 8 U.S.C. 1151

How the numbers are split between categories

INA 203 divides each worldwide level. Unused numbers in one category generally pass to the next, as the statute describes.

• F1, unmarried sons and daughters of US citizens: up to 23,400, plus numbers F4 does not need.
• F2, spouses and children (F2A) and unmarried sons and daughters (F2B) of permanent residents: up to 114,200, plus any amount by which the family level exceeds 226,000, plus numbers F1 does not use. At least 77 percent goes to F2A.
• F3, married sons and daughters of US citizens: up to 23,400, plus numbers F1 and F2 do not use.
• F4, brothers and sisters of US citizens who are at least 21: up to 65,000, plus numbers F1 to F3 do not use.
• EB-1, priority workers, including people of extraordinary ability: 28.6 percent of the employment level, plus numbers EB-4 and EB-5 do not need.
• EB-2, advanced-degree professionals and people of exceptional ability, which is where the NIW sits: 28.6 percent, plus numbers EB-1 does not use.

Sources: INA 203(a), (d) and (h), 8 U.S.C. 1153; INA 203(b)(2), 8 U.S.C. 1153(b)(2)

Per-country limits

INA 202(a)(2) caps the family and employment preference visas going to natives of any one country at 7 percent of the year’s total (2 percent for a dependent area). If numbers would otherwise go unused in a calendar quarter, the cap does not apply for the rest of that quarter. Most F2A numbers (75 percent of the F2A floor) are issued without regard to the per-country cap.

The country that counts is usually your country of birth, not your nationality. The Policy Manual calls this chargeability. In certain situations, a spouse can be charged to the other spouse’s country of birth, and a child to either parent’s. Parents can never use their child’s country.

Sources: INA 202(a)(2), 8 U.S.C. 1152; USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C

What your priority date is

The priority date is your place in the queue. INA 203(e) says preference visas are issued in the order the petitions were filed. The Policy Manual sets the date by category:

• Family preference: the date Form I-130, Petition for Alien Relative, was properly filed with USCIS.
• Employment-based: the earlier of the date the petition was properly filed with USCIS or, where a labor certification is required, the date the Department of Labor accepted it for processing. USCIS says EB-1A needs no labor certification, so the petition filing date is the one that counts there.
• The date appears on the Form I-797 notice for the petition.
• A beneficiary of more than one approved EB-1, EB-2 or EB-3 petition is entitled to the earliest priority date, unless an earlier petition was revoked for reasons such as fraud or error.

Sources: USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C; INA 203(e)(1), 8 U.S.C. 1153(e)(1); USCIS: Employment-Based Immigration: First Preference EB-1

How to read the Visa Bulletin

The State Department publishes the Visa Bulletin every month. It has two sets of charts for each of family and employment cases: Final Action Dates and Dates for Filing. A visa is available when your priority date is earlier than the cut-off date in the relevant chart for your category and country of chargeability.

“C” (current) means numbers are available to everyone in that category and country. “U” means numbers are temporarily unavailable to everyone in it. For adjustment of status, USCIS says each month which chart controls filing; the Final Action Dates chart controls the final decision.

Sources: USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C.4 and C.5; USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C

Retrogression: when the line moves backwards

A cut-off date can move backwards, or a date that was current one month may not be current the next. The Policy Manual calls this retrogression. It usually happens when a category’s or country’s annual limit has been reached or soon will be. A new supply of numbers arrives when the fiscal year begins on 1 October, and the Policy Manual says that usually, but not always, returns cut-off dates to where they were. An adjustment application filed while a date was current is held, not denied for that reason, until a number is available again.

Sources: USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C.4 and C.5

What happens once a number is available

Outside the United States, the approved petition waits at the National Visa Center (NVC). USCIS says the consular office schedules the interview once a visa is available or the priority date is current. In the United States, a visa must be available both when Form I-485 is filed and when USCIS decides it.

Don’t let a current date pass unanswered. Under INA 203(g), the State Department must end the registration of anyone who fails to apply for an immigrant visa within one year after being told a visa is available. Registration is reinstated only if, within two years of that notice, the person shows the failure was due to circumstances beyond their control. The Policy Manual says that termination automatically revokes the petition.

Sources: USCIS: Consular Processing, step 5; USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C.4 and C.5; INA 203(g) and (h), 8 U.S.C. 1153(g) and (h); USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C

Family members

In preference cases, a spouse or child who accompanies or follows to join the principal gets the same category and priority date (INA 203(d)). A child stays a child only while unmarried and under 21, or while the Child Status Protection Act (CSPA) protects their age. Under INA 203(h), the CSPA age is the age on the date a visa number becomes available minus the time the petition was pending, and it counts only if the child seeks permanent residence within one year of availability. If the CSPA age is still 21 or over, INA 203(h)(3) provides for the petition to convert to the appropriate category with the original priority date where one exists; the Policy Manual says conversion applies only in some instances.

Sources: INA 203(a), (d) and (h), 8 U.S.C. 1153; INA 203(g) and (h), 8 U.S.C. 1153(g) and (h); USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C

Timing

No official source cited here predicts how long any category or country will wait, and this page does not estimate it. Waits depend on demand, the per-country limits and the numbers allotted to the category, and only the current Visa Bulletin shows where each line stands. Check the Visa Bulletin on the State Department’s website and USCIS’s adjustment filing charts each month.

Sources: USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C

Common misunderstandings

• An approved petition is not a visa. In a preference category it holds a place in line; the Policy Manual says an approved petition alone gives no right to a visa or to adjustment.
• Nationality does not decide chargeability. Country of birth usually does.
• A date that was current last month may not be current now. Check the bulletin for the month you file.
• Marriage or turning 21 can change a child’s category, and some changes move a case to a different line.

Sources: USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C; USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C.4 and C.5; INA 203(g) and (h), 8 U.S.C. 1153(g) and (h)

How Visa Trouble can help

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