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Family-based priority dates to retrogress

Posted On 2010 Nov 23
Comment: Off

The Department of State (DOS), which is the government agency that regulates the progression of immigrant visa priority dates, recently issued the Visa Bulletin for December 2010.  Regrettably, the cut-off priority dates for many family-based visa categories will retrogress starting December 1, 2010.  This is significant as it affects the ability for individuals to apply for permanent residency, as well as for those waiting for a final decision on their green card applications.

The DOS regulates the number of visas issued by establishing waiting lists based on the priority dates assigned to a family-based or employment-based petition.  For family-based petitions, the priority date assigned to an individual is the date that the I-130 Relative Petition is filed with the Department of Homeland Security (DHS).

For employment-based petitions, the priority date assigned to an individual is the date that the labor certification application is filed with the Department of Labor (DOL).  In situations where a labor certification does not need to be filed with the DOL, the priority date assigned to an individual is the date that the I-140 Immigrant Petition is filed with the DHS.

Each month, the DOS publishes a Visa Bulletin listing the cut-off priority date for each of the various family and employment-based categories.  For those in the United States, an individual may proceed with the filing of the application to adjust status to permanent residency only when the individual’s priority date is at or before the cut-off priority date indicated on the Visa Bulletin.  For those outside the United States, the Embassy is able to issue the immigrant visa only when the individual’s priority date is at or before the cut-off priority date indicated on the Visa Bulletin.

The Philippines has been plagued by severely long waiting periods for immigrant visas because there are significantly more individuals wishing to immigrate to the United States than there are available visas.  In recent months, there had been great joy as the family-based priority dates were moving forward extremely quickly.  Consequently, however, the burst of individuals submitting their green card applications have now resulted in the DOS needing to retrogress some of the family-based cut-off priority dates.
The following depicts the retrogression between the current cut-off priority dates and the cut-off priority dates starting December 1, 2010:

Preference Category
(USC – US Citizen; LPR – Lawful Permanent Resident)
November 1, 2010
December 1, 2010

1st (USC Petitioner; Beneficiary – unmarried child over 21)
04/01/1997
04/01/1997

2A (LPR Pet.; Bene. – spouse or unmarried child under 21)
06/01/2010
08/01/2010

2B (LPR Pet.; Bene. – unmarried child over  21)
09/01/2002
03/01/2000

3rd (USC Pet.; Bene. – married child)
03/01/1995
07/01/1992

4th (USC Pet.; Bene. – sibling)
04/01/1991
01/01/1988

As shown, the priority date for the 1st preference category will remain the same, and the 2A preference category will move forward a couple months.  However, the 2B, 3rd and 4th preference categories will retrogress by approximately 2-3 years.

Accordingly, any individuals with a current priority date in the 2B, 3rd or 4th preference categories who have not yet filed their adjustment of status and work permit applications must file no later than November 30, 2010.  Otherwise, the individual will be unable to file until such time that the priority date once again becomes available.
For those with a pending adjustment of status application in a retrogressing category, the DHS will only be able to approve the adjustment of status applications up to November 30, 2010.  If not approved prior to November 30, unfortunately the DHS will not be able to grant the green card until such time that the priority date once again becomes available.  Fortunately, however, the individual will be eligible to obtain and/or extend a work permit as long as the green card application remains pending with the DHS.

For those who qualify under the 1st and 2A preference categories, thankfully the cut-off priority dates continue to progress or at least remain stagnant.  Individuals in these categories should therefore move forward immediately just in case the cut-off priority dates similarly retrogress.

The handling of immigration petitions is highly time sensitive and requires close monitoring to ensure that opportunities can be maximized.  Individuals must therefore ensure that they have legal counsel who is informed of all of the latest developments so as to minimize delays and capitalize on opportunities.

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For further information, please schedule an appointment with Atty. Allison Aquino or Atty. Richard M. Loew of Aquino & Loew, A Professional Law Corporation, 625 Fair Oaks Avenue, Suite 101, South Pasadena, CA, 91030; (626) 799-3089; info@aquinolaw.net.  Please also visit Aquino & Loew at www.aquinolaw.net.  Aquino & Loew also handles family law and criminal law matters.  Free initial office consultation is available upon appointment.

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