For most of the people attempting to adjust status to that of Legal Permanent Resident or LPR, at some point they are at the mercy of the visa number backlog unless they are an immediate relative of a US Citizen (USC) or one of the few employment categories whose visa numbers are current. On or about the 15th of the month, the DOS published the priority dates of the various family and employment based visa numbers. The priority date is the date that the underlying application was filed. For a family based petition, that would be the I-130. For an employment based petition, it is generally the Labor Certificate. Immediate Relatives of USC's such as spouses, minor children, and parents are not subject to any quotas and can file their LPR application as any time unless there are other legal issues to be considered. Likewise, although most of the employment categories have a wait, sometimes certain categories are current or Congress notes that certain professions have a shortage.
The Various Family Based Categories: "Unmarried Sons and Daughters of Citizens"
The Visa Bulletin has five separate family based categories, which are also assigned quotas according to geographical areas. The first category is,"Unmarried Sons and Daughters of Citizens." These are children over the age of 21, who are single, and whose parents are US citizens (USC's). The visa bulletin shows that USCIS is currently processing LPR applications whose I-130 was filed 11/8/02. So if the I-130 was filed before 11/8/02 the still unmarried over 21 child can file for adjustment of status. If filed after 11/8/02, s/he has to wait for the numbers to catch up. Looking across the June 2009 chart, you can see where the quotas come in. People from China and India have the same priority dates- 11/8/02, however for Mexicans they are working on files with priority dates of 8/10/92 and for Philippinos the priority date is 9/1/93. The priority dates will move around, backwards and forwards as USCIS and DOL get an accurate counts of how many visas have actually been processed.
Family Based Categories: "Spouses and Children" and "Unmarried Sons and Daughters of Permanent Residents"
The next family based category shows who LPRs may sponsor and is divided into two parts: 2A which are Spouses and Minor Children of LPRs and 2B, Unmarried Sons and Daughters (who are over 21) of LPRs.
For most Spouses and Minor Children, USCIS is processing applications where the I-130 was filed prior to 12/15/04(2A) and prior to 2/1/01 for their Adult Single children(2B). Applications from the same time periods are being worked on for not only Chinese and Indian Spouses and Children, but Adult Unmarried children as well.
However for Mexicans, the applications for the Spouses and Minor Children have a priority date of 5/15/02 whereas the Adult Singles have a date of 5/1/92.
Whereas for Philippinos, the Spouses and Minor Children's priority date is the same as the rest of the world's 12/15/04, but the Adult Children's priority date is 4/1/98. So in theory, if filing the I-130 today, an Adult Child of a Philippine LPR would have to wait 11 years to Adjust Status.
Family Categories: "Married Sons and Daughters of Citizens" and "Brothers and Sisters of Adult Citizens"
The categories of Married Sons and Daughters of USC's(3) and Brother and Citizens of Adult Citizens(4) are just as they read and follow the same chart as above.
Even though the priority dates are backlogged, it is worthwhile to file the I-130 and establish the relationship as the visa numbers will move and at times make great leaps forward.
Changing from One Category to Another
If you are a Spouse, Child of a LPR who becomes a citizen, you can "upgrade" your case to that of Immediate Relative of a USC and request that they proceed with the processing of the I-485 Resident Application if filed, or now file the I-485.
However if you are the Unmarried child of a LPR who becomes a USC, then your priority date will either move up or back depending on the case. For instance, an unmarried son from China would have a better priority date, going from 2/1/01 to 11/8/02, whereas an unmarried son from the Philippines would go backwards from 4/1/98 to 9/1/93- adding 5 years to the wait.
If an Unmarried Child gets married, they lose their priority date. However if the I-130 was filed before 4/30/01 and they entered the country before December 2000, they would still be grandfather in under 245-i and able to use it to allow them to adjust status through another I-130 application or a labor certificate.
Employment Based: First and Second Preferences
The 1st, 2nd and 3rd category refer to skill levels of employees.
1st preference includes (a) Persons of extraordinary ability, (b) Outstanding professors and researchers, and (c) Multinational executives and managers. The 2nd includes Members of the Professions holding Advance Degrees or Aliens of Exceptional Ability. The 3rd are skilled Workers, Professionals or Other Workers. 4th Preference is made up of special immigrants including religious workers other than ministers and the 5th is for investors.
The priority date comes from the date that the labor certificate is filed, or if not needed then the date the I-140 is filed with USCIS.
The June 2009 bulletin shows that the visa numbers as current for 1st Preference Workers from Everywhere, however the 2nd Preference is current only for Mexico, the Philippines and the rest of the world EXCEPT China and India, which are backlogged.
Employment Based: Third Preference
The 3rd Preference category at this time is unavailable. As that includes everyone with a 4 year degree or 2 years experience, that includes a lot of people. The numbers will probably stay unavailable until September 15, when the October, 2009 visa bulletin is released for the new fiscal year.
In the Spring of 2005, the Visa Numbers were current, however it took 3-5 years to get a labor certificate. Once the labor certificate was approved, the I-140 and 485 applications could be simultaneously filed. In the spring of 2005, the DOL announced a new Labor Certification Process called PERM which would be much faster. Shortly thereafter, the visa numbers became unavailable.
When the Department of State published the numbers in the October 2005 Bulletin for the new fiscal year, the numbers for the 3rd Preference retrogressed to 1998-2000 depending on the category.
Employment Based: Third Preference continued
When the numbers went from current to unavailable and then retrogressed 5-7, many people were upset, particularly those who had already waiting 3-5 years to get their labor certificate. However, the government had given out too many visas and so had to go back in time to play a waiting game of catch up.
By January 2007, the visa numbers had creaked slowly forward to reach May 01 to August 02 depending on the country. By July 2005, they became current again- briefly allowing many to quickly file to adjust status. The numbers became unavailable again and the October 2005 bulletin posted the numbers as being sometime in 2001 or 2003.
The point being, to file the underlying petition or application like the Labor Certificate or the I-130 and then keep an eye on the visa bulletin and if there exists a brief window to adjust status, take advantage of it and file!.
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