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The difference between processing times and priority dates
[06/17/2010]

Dear Atty. Gurfinkel:

I was petitioned by my employer in 2005. My Form I-140 (employer petition) was already approved, and my adjustment of status (Form I-485) has been pending for a long time. I went to the USCIS’s website, and saw that the processing time for a form I-485 is September 2009. It is now way beyond that processing time, so how come I don’t have my green card yet? Have they forgotten about me? Is my file lost? I’m so anxious and depressed. Is there anything that I can do to get my green card right away, since the processing time has long passed?

Very truly yours,

C.G.

Dear C.G.

Many people make the mistake of confusing USCIS’ processing times with the State Department’s priority dates (or Visa Bulletin). Processing times for petitions and applications are different from the waiting times for priority dates:

Processing times - are USCIS’ estimations for how long USCIS will take to process (and hopefully approve) petitions, applications, etc.

Priority dates - are the waiting times for a visa or green card, once the petition has been approved.

By way of example, imagine a person’s immigration case is like having to stand in two different lines, just like when a person goes to the theater. The person may first stand in one line in order to buy their ticket. Once they reach the front of that line and buy the ticket, they then must go into another line, and wait until they are allowed to go inside the theater. Even though the person may have stood in the first line to buy the ticket does not mean that they can immediately go into the theater, if there is a long line waiting to get in.

The same is true with respect to a person’s immigration case. First they have to "stand in line" in order for their petition to be approved, whether it is an employment or family based petition. That is where the USCIS’ processing times come in to play.

Once USCIS approves the petition, the person must now wait in another line, and watch and monitor the Visa Bulletin, and wait until his/her priority date becomes current It is only when the priority date is current that a person would be in a position to finally adjust status (or be issued an immigrant visa.) The exception to this rule is if the person is the spouse, parent, or minor child of a US citizen. They are considered "immediate relatives", and are not subject to the waiting times of the priority dates.

In your case, your employer petitioned you in 2005, which would be your priority date. (The actual priority date in employment cases is when the PERM application is filed with the Department of Labor). Even though your I-140 petition has already been approved, the Visa Bulletin shows that they are currently processing green cards for people with 2003 priority dates. Therefore, if your priority date is 2005, and they are only processing 2003 (because of priority date retrogression), you still must wait until your 2005 priority date is once again current before you’ll be eligible for your green card.

The same situation applies for family petitions. For example, the USCIS’ processing time for F-4 petitions (brother or sister of U.S. citizens) is about 9 years (2001). That is just the estimated length of the time USCIS takes to process and approve the petition. It does not mean the person will get a green card in 9 years, upon approval of the petition. Once that petition is approved, the actual priority date for F-4 petitions is 1987, meaning that even after the petition is approved, the person would have to wait many additional years until they actually received the visa.

I know that it can be very frustrating with the erratic and unpredictable movement of priority dates. At one point the priority dates for employment based petitions were "current", then they moved back to 2005, then they became "unavailable", then lingered at around 2002, and have slowly moved back up to 2003. However, as clarified above, the USCIS’ processing times of petitions (and applications) are different from a person’s eligibility for visa or green card based on the priority dates. I hope this will minimize the frustration and confusion of people whose petitions were already approved, and are wondering why, despite the approval, they have not been given their green cards yet.

                                                                                                          * * *

Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, "Success Stories," endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

 

Source: Asian Journal
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