Sunday, January 6, 2013

What is a green card “priority date,” and why should you care about it?

If you are considering, or already have applied for a green card, you no doubt have heard the term “priority date.” This date determines when you will be eligible for an immigrant visa. Though priority dates apply to both family and employment immigration matters, I will focus only on the latter here.

As you can imagine, the earlier your priority date, the sooner you can receive your green card. Your priority date is like the number you have on your ticket when you visit the delicatessen counter of a supermarket in the U.S., or when you visit, for example, a Bank of China branch office. Those with numbers lower than yours will be served first, while you will have to wait your turn until your number is called. Your green card priority date operates the same way. In turn, your priority date depends on the type of employment green card process you have.

Employment immigration occurs via as many as three steps. In many cases, the first step is a labor certification, a process by which your employer certifies an inability to find  able, willing, qualified and available U.S. workers for the job the employer is offering to you. Then, assuming the government approves the labor certification, the second step involves the filing of an immigration petition for alien worker, via form I-140. If this petition is approved, then the third and final step for a green card is either an adjustment of status, via form I-485 (if you wish to receive your green card without leaving the U.S.) or via consular processing (if you are outside the U.S., or you leave the U.S.) at a U.S. consulate or embassy.

Note that some employment immigration situations do not require a labor certification, that is, they involve only the latter two steps mentioned above. Such situations are any “first preference” employment petitions (extraordinary ability aliens, outstanding researchers or professors and multinational executives or mangers) plus those seeking a national interest waiver.

Regardless of your type of employment green card process, you receive a priority date only if and when your I-140 petition is approved. Once that approval occurs, then your priority date would be the filing date for your
-          - labor certification, if your green card process required a labor certification
-          - immigrant petition I-140, if your green card process did not require a labor certification

In another post, I will explain how to estimate how long you must wait for your green card.

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Is your H-1B employer’s EIN recognized by Department of Labor computer system?

In another post,, I discussed things you should be doing to get ready for your H-1B filing. In this post, I want to discuss a matter that really is your employer and attorney’s responsibility. However, I mention it to you because their failure to address it will delay your filing.

The matter involves ensuring that your employer’s federal employer identification number (EIN) is recognized by the U.S. Department of Labor (DOL) computer systems—in particular, the computer system that handles labor condition applications (LCA). The fact that your employer does have an EIN, which is issued by the Internal Revenue Service (IRS), does not necessarily mean that this EIN automatically is known by the DOL computer systems, because these systems are separate.

If the DOL systems do not recognize your employer’s EIN, your attorney or employer will not be able to submit your LCA application. Rather, the system will flag the EIN entry as an error, and will continue to do until the DOL systems do receive and thus can recognize that EIN. Therefore, resolving this matter, a topic I address below, will delay your LCA filing and thus the LCA certification. Because your petition requires a certified LCA, your H-1B petition itself will be delayed, and this delay increases the risk that the cap will run out on you.

For this reason, particularly if your H-1B is the first one being filed by your employer, a good precaution is to request DOL to add your employer’s EIN to their system. To do so, your employer or attorney should submit an official document that contains the employer’s printed EIN, clearly marked at the EIN. An example of such a document might be a state or federal income tax payment coupon or the IRS letter that assigned the EIN. Your employer or attorney should email this scanned document to DOL, using the address and subject "LCA Business Verification Team." I recommend doing so as soon as possible, because the closer you get to April 1, the more DOL will receive such requests, and the slower might be their response.

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