Questions and Answers about Backlogs and Priority Dates for Employment-based Green Cards

Q: What do the employment-based immigrant visa (green card) backlogs mean?

A: They mean the green card process will take longer. The process may take 6 or more years for some applicants. This time estimate is counted from the establishment of a priority date through approval of a green card.

Q: What is a priority date?

A: It's the date of filing of the first step of a green card application. This is done by filing a labor certification of any kind (RIR, Special Handling, standard or PERM) or in the labor certification-exempt categories, by filing Form I-140.

Q: If I filed a green card application (I-140 and I-485) before the backlogs took effect October 1, 2005, will I get a green card more quickly?

A: No. You will still wait up to 6 years depending on your filing category for green card approval. However, since your I-485 is already pending, you enjoy two advantages: 1) EAD or work permit eligibility during the pendency of the I-485; and 2) portability of your green card application once the I-485 has been pending for more than 180 days.

Q: Is my green card portable if I haven't filed my I-485 yet?

A: No, with some exceptions. To file an I-485, your priority date must be "current," meaning your date of filing precedes the published "priority date" in your immigrant visa category. If you can't file an I-485 yet, then you can't get a work permit and your green card application is not portable, generally. Portability without filing of an I-485 exists for:

1)      all national interest waiver (NIW) applicants filed in non-Health Professional Shortage Areas (HPSAs), whether or not employer sponsored;

2)      HPSA NIW applicants following completion of the three-year J service obligation; and

3)      all EB-1-1 (extraordinary ability) applicants.

Q: Can I still go ahead with a green card application?

A: Yes. Labor certifications (PERM) and I-140's can be filed despite the backlogs. Only the filing of an I-485 depends on visa availability, meaning a "current" priority date. You can start a green card application or proceed to file the I-140 without having a current priority date in your category.

Q: What if my labor certification is at a Backlog Reduction Center?

A: That can be a good thing! Having an older priority date, say from 2002 or 2003, is beneficial. Don't lose track of that application. Once BRC approves your application, which could take another year or so, you will have already waited several years of your quota delay and thus will be "ahead" in the green card queue of those applicants starting more recently. Older priority dates are now very valuable!

Q: What can I do to speed up my green card process?

A: If you already have a pending application, don't give up on it! You'll need that earlier established priority date. Hence, in most cases, filing a PERM application if you already have an RIR pending is probably a waste of money, unless you have changed companies and lost your priority date. Getting a PERM approved quickly in a backlogged category does not accelerate the green card process. Having an older filed case means you have already done some of the waiting required to get a green card.

If you have an older filed case, consider applying again in a HIGHER category. This is because EB priority dates can be shifted among the EB 1, 2 and 3 green card categories. For example, if you have an RIR pending since 2003 in the EB-3 category, but now you have a master's degree, consider filing a second green card application in the EB-2 category. For applicants born in India, the EB-3 backlog is 7+ years, while the EB-2 backlog is under 6 years. So, shifting the EB-3 filing's priority date to the EB-2 category takes advantage of the earlier filing date and the shorter backlog.

Note: Not all graduate degree holders may be eligible to file in the EB-2 category. To be eligible, the job for which the labor certification is filed must require a master's degree. Also, you may not be able to use the graduate degree as a requirement if you started work in the position at a time when you did not have a graduate degree.

If you are starting a green card application now, apply in a category having a shorter backlog. If you are an investor with substantial capital, consider an EB-5 immigrant investor green card. If you are eligible for the EB-1-1 extraordinary ability or EB-2 national interest waiver categories, apply here. If you are a L-1 multinational transferee, seek an EB-1-3 managerial/executive green card classification.

If you are married to someone from another country, take advantage of cross-chargeability to claim your spouse's quota delay for yourself, if it helps. For example, an Indian married to a Brit is cross-chargeable to the "worldwide" quota instead of the India quota in the applicable filing category.

Q: How do I stay work-eligible in the U.S. if it will take so long to get a green card?

A: H-1B's are protected against long green card waits in two ways: 1) if you have a pending labor cert, filed before the end of your 5th year of H time, you can extend your present H in annual increments, indefinitely, and until approval of your I-140; 2) if you have an approved I-140 and are prevented from filing an I-485 due to green card backlogs, you can extend your H in three year increments, until your priority date is reached.

Other temporary visa holders should consider switching to H to take advantage of these extension provisions. L-1B visa holders in particular should consider switching to H-1B.

Q: How can I learn about green card categories and visa availability?

A: Check the State Department's monthly Visa Bulletin to watch for progress on backlogs: http://travel.state.gov/visa/frvi/bulletin/bulletin_2631.html

Check our firm website and newsletters for more information about green card filing criteria: http://www.millermayer.com/newsletter