Visa Office Explains Priority Date Allocations for Employment-Based Categories

How priority dates are established for backlogged immigrant visa categories has often been viewed as something of a mystery. The State Department's Visa Office has recently attempted to shed some light on how it determines the currency of priority dates for employment preference categories.

As background, priority dates in the employment-based categories are normally determined by the date that the employer either (1) filed a labor certification/PERM application with the Department of Labor; or (2) by the date the I-140 petition is filed with U.S. Citizenship & Immigration Services (if no labor certification is required). The date that the appropriate application is filed with the relevant government agency establishes an individual's "priority date." A "priority date" must be current in a specific employment-based category (e.g., first, second, or third employment-based preference classification) in order for an individual to be able to apply for adjustment of status or be issued an immigrant visa by a U.S. Consulate abroad. The State Department calculates how many visas are available each month by category and by country and publishes the currency of priority dates in the monthly Visa Bulletin, available here.

While the process of determining whether a visa is current has been relatively clear, it has been less clear how the State Department actually determines when a particular date becomes current and how specific priority dates come to be listed on the Visa Bulletin. In an attempt to explain the method to the perceived priority date madness, the State Department has offered an overview on how employment preference cut-off dates are determined.

Specifically, the document provides examples of how priority dates are calculated that does illuminate the priority date system in a relatively straightforward way: "If the monthly allocation target is 3,000 and there is only demand for 1,000 the category will be 'Current'... If the monthly target is 3,000 and there is demand for 8,000 applicants, then it would be necessary to establish a cut-off date so that only 3,000 members would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant." Unfortunately, no further explanation on the confounding issue of retrogression (in other words, when visa numbers that once were available in the Visa Bulletin are no longer available) was provided.

For the article, including charts citing historical demand, click here.

Categories: Immigration Blog