By Maud Poudat | US Immigration Attorney
Posted: February 1, 2016
A foreign national who seek to obtain a green card through a relative or employment will have to file for an Immigrant Visa or file for adjustment of status, if in the United States.
For the Applicants falling into one of the categories which do not have immediate Visa availability, the waiting time until a visa in that specific category becomes available is determined by the system of “Priority Date”.
This waiting time varies from 2 years to more than 13! Fortunately, in September 2015, a reform of the system benefits the foreign nationals who are waiting for a visa to become available in the United States. It allows the filing for the adjustment of status (or green card) before the Immigrant visa becomes available, allowing intending immigrants to obtain a social security number and work in the United States.
Immediate Relatives are spouses and children under 21 of a U.S. Citizen and parents of U.S. citizens. For the applicants who fall into those categories, immigrant visas are not limited in numbers and are immediately available (meaning that there is no wait time for a visa or to apply for the adjustment of status/ green card)
For other relatives of a U.S. Citizen, as well as all the relatives of Legal Permanent Residents (i.e. Green Card holder), and most of the categories of employment-based Immigrant Petitions, the number of Immigrant Visas is limited, and the visas are attributed according to the “Priority date”.
Whether the Foreign intending Immigrant resides in the U.S. or not, his or her qualifying relative or employer will have to file a Petition for Alien Relative or Worker. The date U.S. Citizenship and Immigration Services (USCIS) receives the Petition (“Receipt date”) is what is called the “Priority Date”.
The U.S. Department of State updates every month the Visa Bulletin (https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html), which indicates the date of reception based on which the Service is currently working and granting Immigrant Visas, according to the Immigrant category the Applicant fall under.
Also, the country of Citizenship of the intending Immigrant will be taken into account for the determination of the Visa availability date, as the yearly quotas of allocable visas are different if you are citizen of China, India, Mexico, Philippines, or any other country.
For example, you are the spouse of a Legal Permanent Resident (second preference category subclass A –F2A), national of Spain, and the Receipt date on your Petition for Alien Relative is January 30, 2015.
The Visa Bulletin for January 2016 states that the intending immigrants in the F2A category who have a priority date (i.e. filing date) prior to August 1st, 2014, are currently receiving Immigrant visas, date upon which the individual can file for adjustment of status if in the United States. Thus, under the old system, the Priority Date in this example was not current, i.e. there is not visa available, and the intending immigrant should have waited until such time as the visa bulletin shows a Priority Date on or before January 30, 2015.
A new layer of dates allows an Applicant for an Immigrant Visa to file for adjustment of status (i.e. Green Card) before the visa becomes available. There are now two charts, one containing the old priority dates and one called “dates for filing visa-sponsored family applications.” The second chart should be relied on if one intends on applying for adjustment of status.
Thanks to this reform, the intending Immigrant will be able to remain in the US, apply for an Employment Authorization, and in certain cases Travel Authorization (to travel outside the US).
To be eligible, the Priority date of the Applicant must fall on or before the one shown for his or her category in the “dates for filing” chart of the Visa Bulletin.
With the same example as above, the F2A category Citizen from Spain: the Visa Bulletin for January 2016 shows in the second chart that the intending immigrant can apply for adjustment of status even if the Immigrant Visa is not yet available because the “date for filing” in this category is June 15, 2015. As this date is ulterior to the Receipt date on the Applicant’s petition, he or she will be eligible to file for Adjustment of Status.
So even though the intending immigrant applies for adjustment of status, such application will not be approved until the Priority Date and thus an immigrant visa is available in the applicable category.
This procedure can be stressful because of the complexity of the Priority date/Visa bulletin system, which is why we highly recommend that you seek advice from an experienced and Board Certified Immigration Lawyer if you intend on filing for adjustment of status in the United States.
At Vazquez & Poudat we have extensive experience processing these types of applications and will provide you with our best dedicated service: call today our law office to have a confidential consultation!