McCann Law

Some of the most confusing topics in the U.S. green card process are the idea of Priority Dates and the Visa Bulletin. However, it is critical to understand the Visa Bulletin because it dictates when a foreign national is able to file for his/her green card.

The Visa Bulletin applies to both family-based and employment-based immigrant petitions. As I only practice employment-based immigration, I will not speak about family-based categories. However, the main ideas are the same in both types of immigrant visas. Additionally, I will mainly refer to filing for the green card as by filing a Form I-485 from within the United States, which is the more popular method for employment-based immigrant applications.

What is the Visa Bulletin?

The Visa Bulletin is a monthly publication by the U.S. Department of State that provides information on the availability of immigrant visa numbers, indicating when individuals in various visa categories are eligible to apply for U.S. permanent residency, also known as a green card. It involves a very complex calculation performed and published monthly, which takes into account the available visa numbers for the year by immigrant category and per country. It then compares the available number of visas with the number of visas currently in process and expected to be filed by category and country.

This is the Visa Bulletin for February 2024:

The overall numerical limit for permanent employment-based immigrants is 140,000 per year. This number includes the immigrants plus their eligible spouses and minor unmarried children. Any unused family preference immigrant numbers from the preceding year are added to this cap to establish the number of visas that are available for allocation through the employment-based system.

The total number of available visas is then divided into five preference categories as per this chart:

In addition to the annual number of visas allocated by preference category, these categories are further allocated by country. Currently, the total number of all permanent immigrants, from both family-based and employment-based categories, from any individual country cannot exceed 7% of the total immigration to the United States within a single fiscal year. This regulation has been enacted to prevent any particular immigrant group from overwhelming the overall immigration patterns to the United States.

Why are There Two Charts on the Visa Bulletin?

The Department of State publishes two (2) charts in the monthly Visa Bulletin: Final Action Dates for Employment-Based Preference Cases chart, and Dates for Filing of Employment-Based Visa Applications chart.

The Final Action Dates for Employment-Based Preference Cases chart (Final Action Date chart) indicates when the green card can be issued. If your Priority Date is “current” as per this chart, you can file your green card application (either by filing an application with the U.S. Consulate or by filing a Form I-485 from within the United States to change your status in the U.S.).

The Dates for Filing of Employment-Based Visa Applications chart (Filing Date chart) shows the earliest date you can file for your green card. Although you are not eligible to be issued a green card at once, there are benefits to filing for your green card earlier than the Final Action Date. For an adjustment of status, it is customary to file for an employment document and advance travel document along with the I-485. Filing earlier than the Final Action Date chart allows an applicant to file for, and most likely receive, work and travel authorization prior to the green card. For a consular-processed green card, filing prior to the Final Action Date allows applicants to prepare and submit their required documents promptly, facilitating a smoother and more efficient processing experience.

However, the Filing Date chart is not always available for use. To add more complexity to an already difficult concept, United States Citizenship and Immigration Services (USCIS) will indicate monthly whether that chart can be used for that month. You can find that determination here.

Why Are Some Countries Separated on the Visa Bulletin?

As explained above, the total number of immigrant visas per country per year cannot exceed its 7% allocation. For certain countries such as India and China, more applicants from that country apply for a green card annually than the number they are allotted by Congress. As such, this creates a “wait list.” For India, this wait list normally spans 10 to 15 years.

What is a Priority Date?

A priority date is the applicant’s placeholder in the green card line. It is the date the applicant filed his/her I-140 petition. If, however, the applicant’s employment petition required going through the PERM process, the applicant’s Priority Date is the date his/her PERM was filed.

What Does “Current” Mean on the Visa Bulletin?

The Visa Bulletin will either indicate a date or a “C” to specify which Priority Dates are considered “current” and, therefore, available to either file or be issued a green card. If a date is listed, an applicant’s Priority Date must be earlier than this date to be considered “current.”

If a “C” is indicated, an applicant’s Priority Date is immediately “current.” In practice, this means that an applicant may file his/her I-485 concurrently with his/her I-140. A “C” can be a great benefit to an applicant. Simply filing an I-140 does not confer valid status to an applicant to remain in the U.S. This is why many Indian nationals remain in H-1B status for decades. Although s/he filed an I-140 Immigrant Petition, that alone does not allow the applicant to remain in the U.S. The applicant must hold a valid nonimmigrant status in the U.S. until his/her Priority Date is “current.”

Although filing for an I-485 does not confer status upon an individual, it does allow the individual to remain in the U.S. in a “period of authorized stay by the Attorney General” (POSABAG). This means that the applicant is allowed to wait in the United States for his/her adjustment of status application to be adjudicated without maintaining a separate nonimmigrant status. This is attractive to many applicants; however, it can be a dangerous tactic to file concurrently with or before the I-140 is approved. If the I-140 gets denied, the I-485 will be denied, and the applicant will start accruing unauthorized presence in the United States. If an applicant accrues 181 to 364 days of unauthorized presence, s/he will be barred from reentering the U.S. for three (3) years. If an applicant accrues one year or more of unauthorized presence in the U.S., s/he is subject to a ten (10) year reentry bar.

How to Read the Visa Bulletin

All of the information provided in this article will assist you in reading the Visa Bulletin. I will now apply this information into hypotheticals where we decide whether an applicant is able to file an I-485 change of status in February 2024.

Suresh, an Indian national, filed his EB-2 based PERM on May 15, 2012. Is he able to file for his green card in February 2024? No, he cannot yet file for his I-485. Because USCIS indicated the Filing Date chart should be used in February 2024, we look to that chart. Suresh is a national of India, so we must look to the specific India column. For the EB-2 India category in the filing date chart for February 2024, the “current” date is May 15, 2012. However, to be considered “current”, Suresh’s Priority Date (date he filed his PERM) must be before the date on the Visa Bulletin. Suresh’s Priority Date is the same date as on the Visa Bulletin, so he is ineligible to file his I-485 in February 2024.
Qian, a Chinese national, filed an EB-2 National Interest Waiver (NIW) I-140 (which does not require PERM) on May 9, 2020. Is he able to file for his green card in February 2024? Yes, he can file for his green card. According to the date of filing chart for EB-2 China, the “current” date in February 2024 is June 1, 2020. As Qian’s Priority Date is May 9, 2020, which is before the “current” date of June 1, 2020, he is able to file for his green card.
Assume the same facts as above for Qian, except that USCIS decided that the Final Action Date chart must be used for February 2024. Is he able to file for his green card? No, he cannot file for his green card. According to the Final Action Date chart for EB-2 China, the “current” date in February 2024 is January 1, 2020. As Qian’s Priority Date is May 9, 2020, which is after the “current” date of January 1, 2020, he is unable to file for his green card in February 2024 under the Final Action Date chart.
Mietek, a Polish national, filed his EB-3 unskilled worker PERM on October 30, 2022. Is he able to file for his green card in February 2024? No, he cannot file for his green card in February 2024. Mietek is a national of Poland which is not separated on the Visa Bulletin, so he falls into the “All Chargeability Areas Except Those Listed” (also known as “Rest of World” or ROW) column. Additionally, his PERM was filed in the EB-3 category, but it was filed as an unskilled worker PERM. Therefore, his proper visa category is “Other Workers,” not EB-3. Looking at the Filing Date chart, under ROW for Other Workers, the “current” date is December 15, 2020. As Mietek’s Priority Date is October 30, 2022, he is unable to file for a green card in February 2024.

The Final Wrinkle in the Visa Bulletin - Retrogression

You now know how to read the Visa Bulletin. Your Priority Date is “current” for February 2024, and you are filing for your green card. Processing times vary, so you plan on getting your green card in 6 months to 2 years from February 2024. Nothing can happen now to derail your plans, right?

Unfortunately, Priority Date Retrogression can change your processing time. Retrogression occurs when the number of visas already applied for in a fiscal year exceeds the amount Congressionally allocated to your visa category and country. This creates a wait list that can push your application back down the line.

This happens because the Visa Bulletin is created using estimates. The government’s fiscal year begins on October 1. In September, the Department of State gathers data on how many immigrant petitions are in the pipeline. If the DOS estimates that the number of visas statutorily available for a certain visa category and country will be able to cover the number of applications expected to be filed, the Visa Bulletin will indicate “C” for “current.” However, assume that in April, there is an unexpected surge of green card applications, and the number of applications in process exceeds the number of visas that may be issued. This creates a waiting list, and the May Visa Bulletin will indicate a backlogged date (the date will no longer be “C”).

How can this affect you? If your priority date falls out of “current” and your green card application has not yet been approved, you are no longer “current.” USCIS will not return your application because it was “current” when it was filed. USCIS will also continue to process your employment and travel documents. However, USCIS cannot approve your application because a visa number is no longer available to you. You must wait until your Priority Date becomes “current” again before you can receive your actual green card.

Conclusion

The Visa Bulletin is arguably the most complicated aspect of the immigrant green card process. This article discusses the basics of the Visa Bulletin. It is not intended to be relied upon as legal advice. Every applicant’s situation is different, so we recommend that you contact an attorney who solely practices immigration law to get the proper legal advice for your specific immigration needs.