By Attorney Farhad Sethna © 2016
noun, plural “quandaries”.
“a state of perplexity or uncertainty, especially as to what to do; dilemma.”
What is a Priority Date Chart?
In other articles on this blog, I have explained what a Priority Date Chart is. Briefly, think of the priority date as your ticket to get a “green card” to immigrate to America- that is, come and live permanently. However, the number of green cards- and therefore the number of tickets- is limited every year by Congress. Many more people apply for green cards than there are green cards issued every year. Therefore, each and every year, there is a backlog (excess) of green card applicants verses people who actually receive their green cards. This means that each and every year, there are hundreds, thousands, even tens of thousands of people who are still waiting in line, holding their ticket, but cannot be admitted. I am sure your question therefore is: when will these people be admitted? Every month, the US Department of State (DOS) publishes the “Visa Bulletin”. In this monthly bulletin, the DOS calculates how many “Immigrant Visas” have been issued, in both family-sponsored and employment-based categories, and subtracts that number from the annual quota set by law. Each of those categories has its own “Priority Date” chart. By doing this, the line moves forward a little – the Priority Date chart tells people in line whether their applications are ready to be completed so they can receive a “Green Card”.
The Priority Date Chart tells applicants when their “priority date” becomes current.
In the interests of brevity, this article will NOT discuss the priority dates for the beneficiaries who have been selected for the annual “visa lottery”.
Qandary # 1:
How do you find your “priority date” on the Visa Bulletin charts?
A priority date is the date on which the individual, or his or her family, or his or her employer applied for an immigrant visa (“green card”) on their behalf. That date is a fixed date, the date the application was received by a US government agency. Because of the backlogs, that date determines who is next in line to receive a green card. If there are many people in that particular “priority” than there are immigrant visas available, the priority date moves very slowly. For some categories, especially brothers and sisters of US citizens, the priority date can be as much as twenty or more years! To illustrate this further, please go to my Youtube channel, where I have a video explaining the priority date chart and how it works.
As an example, here is a section of the priority date chart for December 2016:
Category All Areas EXCEPT CHINA INDIA MEXICO PHILIPPINES
F1 01DEC09 01DEC09 01DEC09 15APR95 15SEP05
F2A 22FEB15 22FEB15 22FEB15 15FEB15 22FEB15
F2B 08MAY10 08MAY10 08MAY10 15OCT95 01MAR06
F3 15FEB05 15FEB05 15FEB05 08DEC94 15AUG94
F4 22DEC03 01OCT03 01APR03 15MAY97 22MAY93
So, in the example above, for F-1 (Unmarried sons or daughters of US Citizens), who are born in India, the “Priority Date” is December 1, 2009. This means applications filed BEFORE December 1, 2009 by US Citizen parents on behalf of their sons and daughters born in India are just now (December 2016) ripe for final processing and approval, which could take several months more! So that’s at least a 7 year wait!
Similarly, F-4 Brothers and Sisters of US Citizens born in the Philippines whose applications were filed before May 22, 1993 (23+ years ago!) are just now reaching the approval stage!
Given this background and the example above, let’s move on to the difficult part: how to read and apply the Priority Date chart to your case:
Quandary #2: Understanding the Visa Bulletin and the Priority Date Charts:
The Priority Date Chart is actually two charts. One chart is for family-sponsored visas (see the example above) and the other is for employment-based visas.
Each month, the Department of State publishes the Priority Date Chart. In this chart, it defines the various “priorities” that are set forth by Congress. These priorities include unmarried sons or daughters of US citizens (F1), spouses and children of permanent residents(F2A and B), Married sons or daughters of US citizens (F3) and brothers and sisters of US citizens (F4) on the family-based chart. On the employment-based side, we have aliens of extraordinary ability (EB-1) or exceptional ability, aliens with advanced degree (EB-2), professional aliens (EB-3), religious workers (EB-4), and a broad smattering of “all other classes” (also EB-4) and finally, immigrant investors (EB-5).
Also, notice in each Priority Date Chart there are a number of columns. This is because in additional to the annual limit on total immigrant visas issued, there is also a per-country limit on the number of immigrant visas for beneficiaries from those countries. The first column is for “all other countries”, other than the countries listed in the subsequent columns. On the Family-based chart, the other four columns are for China, India, Mexico, and the Philippines. These are traditionally high immigration countries, and therefore they have different priority dates from the “all other countries” in the world. These four countries have a special “carve-out” so applicants from these countries do not use up the majority of the immigrant visas every year. In other words,
Thus, understanding the Priority Date Chart and where your family-sponsored or employment-based application stands on that chart is the second quandary.
As discussed above, the Priority Date Chart has two tables. Table 1 is for family-sponsored petitions. Table 2 is for employment-based and “other category-based” petitions. Simple enough so far. Not too much of a quandary right? Maybe not. But things get yet more confusing.
Starting October 2015, under President Obama’s directive, the Department of State and the USCIS collaborated in trying to speed up the processing of immigrant visa applications by queuing up applications which were likely to be ready for issuance of green card and having those applicants start the process of submitting documents, appearing for medical exams, and in general, assembling and making a file ready for immigrant visa processing. In order to do that, the Department of States started to predict applications which would become available for immigrant visa issuance a few months ahead of time. For each of the two categories- family and employment, it therefore created an additional table. We will call these tables as follows: the original priority date table will be Table A. It is now called the “Final Action Dates” chart. The new table will be Table B. It is now called the “Dates for Filing” chart. Therefore, for each category, family and employment, we now have two tables- Table A, and Table B. That’s the second quandary: which priority dates are the ones to follow? The ones on Table A (which is the “real” priority date, or the ones on Table B (which gives applicants a few months in advance of their real priority date to begin advance processing of their applications)?
That’s the third quandary: understanding now that there are two tables- Table A and Table B for both categories of priority dates charts: family-sponsored and employment-based. Therefore, the immigrant now has to look at not just one table in either category, but two tables in each category. If it’s family-based, you now have to check two tables. If it’s employment-based, you now have to check two tables.
However, to complicate matters further, the Department of State does not differentiate between which table it will use for any given month. If your application is in the category of “Dates for Filing”, expect your immigrant visa process to begin, though the final visa cannot be granted until the “Final Action Date” becomes current.
However, if the beneficiary is in the USA and seeks to apply for “Adjustment of Status” (a “green card”) in the USA, the beneficiary has to select between the “Dates for Filing” and the “Final Action Dates” chart. That sets up the third quandary!
Since October 2015, the USCIS has issued a monthly directive stating which of these two tables it will use. Therefore, not only does an applicant has to determine whether his or her priority date is current or not, but in addition, whether it is current on the respective table that the USCIS will use for that given month. If it is not current, then the applicant cannot apply for adjustment of status. The USCIS directive can generally (because the USCIS is constantly updating its website and links are often broken) be found here:
As if this wasn’t enough, the USCIS has now started to divide the priority dates within each monthly “Dates for Filing” table or the “Final Action Date” table. It started doing this in November 2016. According to the USCIS’ communique for December 2016’s priority dates employment-based charts, the USCIS will use the “Dates for Filing” table for all applications except for Entrepreneurs (EB-5) investor visas. For EB-5 visas it will instead use the “Final Action Dates” table
As an example I have reproduced the instructions on the USCIS website for December 2016:
For Family-Sponsored Filings:
You must use the Dates for Filing Family-Sponsored Visa Applications chart in the Department of State Visa Bulletin for December 2016.
For Employment-Based 1st through 4th Preference Filings:
You must use the Dates for Filing of Employment Based Visa Applications chart in the Department of State Visa Bulletin for December 2016.
For Employment-Based 5th Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for December 2016.
This means, from now on, not only will an applicant need to look at the two different charts, determine which one to use, but then ensure that his or her particular preference category does not fall into the chart which the USCIS is not choosing to use for that particular month. This is simply incredible. However, this is what it is. This is quandary #4.
With all these quandaries, how is one supposed to proceed? With caution. Check and double check the priority dates. Check the USCIS’ website for which table is going to be used for that particular month in which you are going to be filing your adjustment of status application. Then, double check to make sure the particular priority under which your application falls is still going to be “current” per USCIS guidance. Make sure your priority is not one which is selected from the chart that the USCIS is not using for that particular month.
As always, in issues regarding consular processing or adjustment of status, it is best to have qualified legal counsel who can help. Navigating the rocky shores of the Visa Bulletin’s Priority Date Charts is not a place where you want to make a mistake. To do so, could wreck your dreams and your hopes, maybe not permanently, but for a significant period of time.
About the author: Attorney Farhad Sethna has practiced law for over 25 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.