What is a Priority Date?

A priority date is the date that an alien initially filed his/her case to immigrate to the United States by applying for an immigrant visa. For family-based applicants, this is the date the USCIS first received the immigrant petition (Form I-130) filed on the alien's behalf. For employment-based applicants, this is the date PERM (an application for labor certification) is received by the DOL, or the date an immigrant preference petition (Form I-140) was filed, if no labor certification is required.

What is a cut-off date?

Since certain aliens are subject to the restrictions of the annual immigrant visa quota and the quota is periodically full for some categories, the State Department publishes a monthly waiting list based on applicants’ priority dates to regulate who is eligible to apply for adjustment of status to permanent resident (Form I-485) or Consular Processing. On the list, the State Department provides a date for each category of preferences for both family-based and employment-based immigrant applications. This date is known as cut-off date. The State Department determines the cut-off dates by viewing the priority date of the first applicant who could not file for adjustment of status due to the previous month’s dates and quota.

What is the significance of the priority dates and the cut-off dates?

For those aliens who are subject to the annual immigrant visa quota, the priority date and the cut-off date determine when they can file an application to adjust status to permanent resident (Form I-485) or Consular Processing. If their priority date is earlier than the cut-off date published by the State Department, then they may apply for adjustment of status or consular process. Otherwise, they must wait until the cut-off date pass their priority date. Therefore, the earlier the priority date is, the quicker the alien is eligible to get his/her green card.

Examples:

1. John is from Mexico, applying for first preference family-based immigration with a priority date of 05/20/1993.  According to the State Department, the cut-off date for this group is currently 01/01/1992.  Since John’s priority date is not earlier than the cut-off date, he must wait to apply for adjustment of status until the cut-off date passes the priority date (i.e. he must wait until the cut of date is 5/21/1993 or later).
2. Jen is from India applying for third preference in family-based immigration with a priority date of 07/22/98.  According to the State Department, the cut-off date for the category is currently 08/01/98.  Therefore, since Jen’s priority date is earlier than the cut-off date, she may apply to adjust status.
3. Eric is from China applying for first preference employment-based immigration and has a priority date of 07/01/05.  The State Department has set the cut-off date for this group at 07/01/05.  Since Eric’s priority date is not before the cut-off date, he must wait to apply to adjust status. 
4. Doug is from the Philippines, applying for fourth preference employment-based immigration with a priority date of 04/22/06.  The State Department has the cut-off date for this category listed as “current.”  This means that all qualified applicants may adjust status or consular process, regardless of priority date. Therefore, Doug can apply for adjustment of status as soon as he wishes.

Who should be aware of the priority date and who may not?

Those aliens who are subject to the annual immigrant visa quota should pay close attention to their priority dates. In other words, the priority dates affect those applicants who belong to one of the four categories of preference in family-based immigrant petitions, and theoretically all of the employment-based applicants. However, practically speaking, the visa numbers for the first preference in employment-based immigrant petition (EB-1, aliens with extraordinary ability, outstanding researchers, and multinational executives), the fourth preference (EB-4, certain special immigrants), the fifth preference (EB-5 investors) and the religious workers in employment-based immigrant petition are usually “current” all the time. This means that qualified EB-1, EB-4, and EB-5 applicants are able to adjust status or consular process at any time.  For family-based immigration petitions, applicants who are immediate family members of U.S. citizens (spouses, parents, and unmarried children under the age of 21 of U.S. citizens) need not concern themselves with the priority date, because they are not subject to the annual immigrant visa quota.

Who determines visa availability, quotas, and the cut-off dates?

Congress determines the number of immigrants allowed to enter the United States for each category and country by allocating the number of immigrant visas.  This determination affects the number of visas available for all of the family-based and employment-based immigration categories and sets the quota.  Based on the number set by Congress, the Department of State determines the cut-off dates in order to fairly distribute the visas over all the categories.

(Updated 10/3/2012 by AD)

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