Priority date and visa retrogression

The US limits the number of employment-based green cards each year, by category and by country of chargeability, which is usually your country of birth. Because demand often exceeds supply, applicants queue in the order of their priority dates.

USCIS says that for employment cases needing labor certification, the priority date is the date the Department of Labor accepted the labor certification application for processing. For cases that do not need labor certification, it is the date USCIS accepted the Form I-140 petition. For nurses on the EB-3 Schedule A route, whose employer files the labor certification with the I-140, it is the I-140 filing date.

The State Department publishes the Visa Bulletin every month. USCIS explains that it contains two charts:

• Final Action Dates, which show when a green card can actually be approved
• Dates for Filing, which may let you submit your application earlier, when USCIS says so for that month

Your visa is available when your priority date is earlier than the cut-off date shown for your category, such as EB-3, and your country. If the chart shows "C" for current, there is no queue that month.

USCIS describes visa retrogression as what happens when more people apply for a visa in a category than there are visas available that month. The cut-off date stops moving or moves backwards, and a priority date that was current can become unavailable. Annual limits apply per US fiscal year, which runs from 1 October to 30 September, so availability can change as the year's numbers are used.

For international nurses this matters because an approved I-140 does not mean an immediate green card. Your case may wait at the National Visa Center or with USCIS until your date is current again.

The same queue applies whichever way you finish the process: through an immigrant visa interview at a US consulate abroad, or by adjusting status with USCIS if you are already in the US in another lawful status. In both cases the date on the Visa Bulletin, not the date of petition approval, decides when the green card can be issued.

1. Find your priority date on the I-140 receipt or approval notice.
2. Check the monthly Visa Bulletin for your category and country.
3. Check whether USCIS is using the Final Action or Dates for Filing chart that month.
4. Keep your documents ready so you can act when your date becomes current.

USCIS says that where labor certification is needed, the employer must file the I-140 within 180 days of DOL approval, or the certification is no longer valid.

• Confusing filing and approval. Approval of the petition does not make your date current.
• Planning a move date on a cut-off date that later retrogresses.
• Not checking chargeability, which is usually country of birth, not nationality.

See our NCLEX-RN guide and USA page.