Every employment-based immigrant must wait for his priority date to be current before he can become a legal permanent resident. Understanding the priority date is especially important for scientists who were born in China (mainland), India, Mexico, and the Philippines.
A foreign national obtains a priority date the day that USCIS receives the foreign national’s I-140 immigrant visa petition (or the date that a labor certification is filed). Depending on the foreign national’s job description and requirements, the priority date will fall into one of the preference categories.
The 1st Preference is for Extraordinary Ability, Outstanding Researchers, and Multinational Managers and Executives. The 2nd Preference is for individuals with Advanced Degrees or the equivalent, with Exceptional Ability, or National Interest Waiver. The 3rd Preference is for Professionals, Skilled Workers, and Other Workers.
Priority dates are not always simple to predict. They can move ahead one month for every month that passes, or move only a few days, or even retrogress.
Every month, the US Department of State posts the visa bulletin for the upcoming month. A foreign national can check his priority date at http://travel.state.gov/visa/bulletin/bulletin_1360.html. This page also links to several Comprehensive Lists of Cut-Off Dates. Each chart shows how priority dates have moved month by month for each preference based on the country of birth from 1992 to present.
Normally, the higher the preference category, the sooner the foreign national will obtain legal permanent residence. Many new graduates will fall into the 2nd or 3rd Preference. Generally, a foreign national who gains experience with a company, cannot, in turn, use that experience to move up from the 3rd to the 2nd Preference, which can be very frustrating to foreign nationals with severely backlogged priority dates.
In contrast, the foreign national can often use that experience to move to a new company and then qualify for the 2nd Preference. Therefore, it can sometimes benefit a foreign national to work for a number of years in one employer, then change to an employer who can then use that experience to file a labor certification which requires such experience. By delaying the start of the legal permanent residence, the foreign national can sometimes actually speed up the process!
A foreign national’s country of birth, with some exceptions, determines what country is used for the priority date, and not the country for which the foreign national has a passport. Generally, the country of birth and the country of the passport are the same. Sometimes cross-chargeability can shorten a foreign national’s waiting time by allowing the family unit to adjust based on the country of birth of the spouse. This can often be especially beneficial for foreign nationals born in China, India, Mexico, and the Philippines.
The US government’s fiscal year begins on October 1st, and ends the next year on September 30th. That means that foreign nationals started to use the visas for the 2014 fiscal year on October 1, 2013. The US Department of State attempts to predict upcoming visa use so that all the visa numbers are used annually. As the end of the fiscal year draws close, some priority dates suddenly move forward at a very fast rate, only to retrogress the following October 1st.
A foreign national’s priority date must both be current when the adjustment for legal permanent residence is filed, and when the adjustment is granted. This can be a huge benefit in some cases, even if the priority date retrogresses. Many non-immigrant visa work statuses are only valid for a limited number of years.
About 90 days after the adjustment is filed, the foreign national is issued a work permit, known as an Employment Authorization Document or EAD. The non-immigrant visa work authorization is no longer needed (in most cases). Additionally, when a foreign national files for adjustment, his dependent spouse and children also file for adjustment which normally includes an EAD. Each foreign national dependant can then use the EAD to apply for a Social Security number. Having work authorization and a Social Security number makes many things easier for the spouse and children.