Priority Date - How to recapture from previously filed petition ?

Generally speaking, the filing date of the visa petition determines the priority date of the alien beneficiary, and his or her place on the waiting list for an immigrant visa.

Employment Based

Immigrant workers being sponsored for labor certifications or PERM are an exception to above rule; the labor certification filing date with the Department of Labor controls as the priority date.

In the context of employment-based immigration, visa petitions filed under the EB-1, EB-2, or EB-3 categories are entitled to the earliest priority date where a subsequent immigrant visa petition (usually I-140) in any of these categories is submitted and approved, unless the prior petition was revoked due to fraud. However, these priority dates are not transferable to the EB-4 or EB-5 categories, or family-sponsored visa petitions.

Once immigrant petition for alien has been approved, he or she can move to new employment. In order to recapture previous priority date, alien has to start their green card process again with his employer. This involves submission of new PERM for new job to DOL. Once PERM is approved, request to capture previous priority date can be sent to USCIS when filing for new I-140 or during filing I-485. Please note, you will need an approved I-140 to recapture priority date. Old PERM approval is not sufficient. Proof of previously approved I-140 could be send to USCIS in form of copy of approval notice, copy of receipt notice or image capture of approval of case on USCIS website.


Family Based

Recapturing an earlier priority date for a subsequent family-based visa petition is more complicated. Here’s a brief overview of the U.S. family-based immigration system: immediate relative (spouse or unmarried child under 21 years old of U.S. citizen); 1st preference (unmarried child over 21 years old of U.S. citizen); 2nd preference (F2A – spouse and unmarried child under 21 years old of permanent resident, and F2B – unmarried child over 21 years old of permanent resident); 3rd preference (married child of U.S. citizen); and 4th preference (brother or sister of U.S. citizen). It is important to note that there is no category for married children of permanent residents.

Regulations implementing U.S. immigration law provide specifically when priority dates can be recaptured for a family petition. Generally speaking, a beneficiary can recapture an earlier priority date if the petitioner and the beneficiary are the same, the petitioner is filing in the same preference category, and the prior I-130 visa petition was not terminated or revoked. For example, if an unmarried child of a U.S. citizen over the age of 21 years old (1st preference category) marries while the petition is pending, then the beneficiary is automatically converted to the 3rd preference category but they will keep the original priority date. However, if an unmarried child of a permanent resident (2nd preference) marries while the petition is pending, then the petition is automatically revoked as a matter of law because no category exists for permanent residents to petition married children. Any subsequent petition that the permanent resident parent files on that child’s behalf (such as a 3rd preference visa when the parent becomes a U.S. citizen) will entail a new filing (priority) date.

Another complicated situation where priority dates can be recaptured involves the children of unmarried sons or daughters who are the principal beneficiaries of their parents’ petitions filed in the 2nd preference category. If these children (derivative beneficiaries) turn 21 years old, they lose their derivative status and move from the F2A category to F2B. Moreover, the children will require a new immigrant visa petition filed on their behalf. Fortunately, these derivative beneficiaries who “aged-out” will be able to retain the original priority date of their initial petition.

Priority dates directly determine when an individual can immigrate to the United States or adjust their status to permanent residency. As you can see, attempting to recapture an earlier priority date to ensure more timely immigration can be complex. Individuals seeking assistance with recapturing a priority date from a prior petition should consult with knowledgeable and experienced immigration attorneys.

Visa Bulletin - February 2011

February 2011 Visa Bulletin was released on 12th January 2011. As predicted there was no major movement for employment based category. EB-2 China progressed by 8 days into July 2006. EB-2 India is still standstill. Major movement for the EB-2 employment based category for India and China will be seen in month of June-July 2011, only when unused visa numbers will be available due to spillover from EB2- ROW and EB-1 . Until then one should expect small or no movement in EB-2 category. Eb-3 movement was observed for India and China. This will still progress at snail pace for rest of the year. Family Based category will see retrogression for rest of the year.

Family Based :

As per February Visa Bulletin, family categories had seen as much of the advancement of the last two years has been reversed with major retrogression.

RETROGRESSION OF FAMILY CUT-OFF DATES

Continued heavy applicant demand for numbers in the Family Fourth preference category has required the retrogression of the Worldwide, China-mainland born, Dominican Republic, and India cut-off date for the month of February.

It has also been necessary to retrogress the Dominican Republic F2B category for the month of February.

Further retrogressions cannot be ruled out should demand continue at the current levels for some categories and countries.

Please Note: Applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month, compared with the amount of available numbers. For example, during the past month, over 17,300 of the applicants who have become documentarily qualified in the Family preference categories have priority dates earlier than the cut-off dates established for January. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.

Employment Based :

Employment 1st - still current in all categories.

Employment 2nd - weak movement for India and China; just a one week improvement for China (01 Jul 2006) and stalled again for India (8 May 2006).

Employment 3rd - modest movement; 8 days advance for most countries to 01 April 2005; two week advance for China to 01 Jan 2004; India moves up two week to 22 February 2002. Mexico jumps 2 months to 08 July 2003 and the Philippines jumps by 8 days to 01 April 2005.

Employment 3rd Other Workers – most countries moved by one week at 01 May 2003; India moves up 22 February 2002; Mexico jumps to 01 May 2003.

Employment 4th - still current in all categories.

Employment 5th - still current in all categories.

H1B FY 2011 Cap Count - 7th Jan 2011

As per recent release by USCIS, regular cap has utilized till date 58,700 visas. As per American Immigration Lawyer Association (AILA), USCIS has 6,350 H-1B Singapore and Chile unused numbers from FY 2010. The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers. Taking this into account, H1B Cap for FY 2011 will not be reached until regular cap has utilized around 64,350 total visas under regular cap. Just to remind our readers, all application submitted under Masters Cap will be counted towards regular cap.

How to contact USCIS National Customer Service Center ?

Yesterday USCIS released guide on the services provided by USCIS. This is a quick cheat sheet for anyone who is trying to get in contact with USCIS Customer Representative regarding recently filed cases, queries or any discrepancy in their receipt or approval notice. This Customer Service Reference Guide provides information on the services provided by USCIS. This guide is a duplicate of the information used by the representatives at the National Customer Service Center to answer calls on our toll free numbers.

For information about a particular immigration benefit or service, please select the appropriate topic on the menu below. USCIS encourages petitioners to go through this information before calling National Service Center. This is the comprehensive information that is available online. Individual should bookmark this page for future reference.

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• Getting Ready to File (326KB PDF)

• Need to Order Form (21KB PDF)

• Benefits for U.S. Citizens (1375KB PDF)

• Benefits for Permanent Residents (1447KB PDF)

• Nonimmigrants (1579KB PDF)

• Refugees and Asylees (320KB PDF)

• Filing for Permanent Residence based on Employment (207KB PDF)

• Filing for Permanent Residence Based on a Family Petition (331KB PDF)

• Employer Responsibility ( PDF)

• Employment Authorization (140KB PDF)

• Temporary Protected Status (534KB PDF)

• Special Programs (233KB PDF)

• Hiring a Foreign National for Short-Term Employment (1915KB PDF)

• Helping a Foreign National Employee Get Permanent Resident Status (676KB PDF)

• Treaty Traders and Investors (416KB PDF)

Source : USCIS Customer Service Guide