The priority date determines your place in line/the queue. The priority date, according to the USCIS, is normally that date when the relative or employer of the applicant files the immigrant’s visa petition with the USCIS. You should be able to locate the priority date on the Notice of Action (Form I-797) which was filed on behalf of the applicant. The USCIS officer should verify the priority date “by reviewing the actual immigrant petition or permanent labor certification application.”

Priority dates for family-sponsored preference cases

“For family-sponsored immigrants, the priority date is the date that the Petition for Alien Relative (Form I-130), or in certain instances the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), is properly filed with USCIS.”

Priority dates for employment-based preference cases

Immigrants seeking visas and green cards based on employment have their priority date set on the earliest of the:

  • The date the petition is properly filed with the USCIS
  • Date “the permanent labor certification application was accepted for processing by the Department of Labor (DOL), when a labor certification is required.”

Other factors may determine the priority date as well.

What is Classification Conversion?

In some cases, the USCIS officer must consider the visa classification and the special priority date – when reviewing the availability of visas. Sometimes, the classification of the petition may shift automatically based on circumstances subsequent to the filing. While this shift doesn’t affect the applicant’s priority date – it can affect the availability of the visa.

For some family-based applications, the “applicant can elect to opt-out of the classification conversion when it is advantageous to do so” – provided they are eligible.

Use of earlier Priority Dates

Sometimes, applicants have multiple applications pending – each with different priority dates. In this case, the applicant may opt to use an earlier priority date instead of the later date on the most recent petition. In this scenario, the applicant should inform the USCIS officer of his/her intent to use the earlier priority date – “by including an approval notice for the previous petition in the adjustment application packet.” This situation can occur for both family-based petitions and for employment-based petitions.

“Specifically, in the event that an applicant is the beneficiary of multiple approved employment-based petitions filed under 1st, 2nd, or 3rd preference, the applicant is entitled to the earliest priority date.”

Similarly, an applicant with an approved Form I-526 filed on or after November 21, 2019, is generally entitled to the priority date of a previously approved 5th preference immigrant investor petition.”

When earlier Priority Dates may not be used?

The option to use an earlier priority date normally doesn’t apply for Adjustment of Status petitions in the following situations:

  • If the application was denied or ended due to misconduct – such as “fraud, willful misrepresentation, or material error”
  • “The beneficiary is no longer eligible for the classification for which the petition was filed and does not qualify for automatic conversion”
  • The “DOS terminated the registration of an applicant who failed to timely file for an immigrant visa, thereby automatically revoking the petition”
  • The applicant already used the earlier petition to immigrate

The priority date of an earlier approved petition (in cases of employment-based 1st, 2nd, and 3rd preference categories) can’t be used for a later petition if the approval of the earlier petition was revoked by the USICS due to:

  • “The petition was approved in error
  • Department of Labor revoked the labor certification associated with the petition,
  • USCIS or DOS invalidated the labor certification associated with the petition
  • Due to fraud or the willful misrepresentation of a material fact.”

Employment-based 5th preference cases

There are special considerations, regarding using an earlier priority date, for 5th preference employment immigration petitions. The earlier priority date can’t be used:

  • “If the alien was lawfully admitted to the United States for permanent residence using the priority date of the earlier approved petition”
  • “If USCIS revoked the approval of that petition based on a material error”

The inability to use the earlier priority date if the earlier approved petition involved fraud or misrepresentation of a material fact only applies if the prior misconduct includes “fraud or willful misrepresentation – of that material fact.

To discuss your priority date and cut-off date, your place in the green card line, call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with you.

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