Priority dates determine when a visa will be available. For many categories of visas there is a limit to how many visas can be issued in a given year. Where demand exceeds availability, a backlog has developed. Knowing your priority date will allow you to compare it with the monthly Visa Bulletin issued by the Department of State and thereby give you an idea of when you may apply for a change of status.
Family Preference Petitions
For family preference petitions, the priority date is the date the I-130 petition is correctly filed (i.e. instructions followed on forms and proper fee paid) with USCIS. Resubmissions due to an incorrect filing do not get to back date their priority date to the date of the original submission. Instead the priority date for resubmissions is the time of the resubmission (assuming it was not filed correctly). Derivative beneficiaries (spouse/children) get the same priority date as the beneficiary. 22 CFR §42.53(a). If an LPR parent naturalizes while petition is pending, the child may choose to “opt-out” of conversion. The child may choose to do so, because for some countries converting to family based first preference may be a longer wait than remaining in family based 2B.
Conversion & Retention of Priority Dates
Some petitions automatically convert to others but may retain their original priority date. 8 CFR §204.2(i). Examples of converted petitions include 1) Child of USC marries and goes from Immediate Relative to 3rd preference; 2) Divorce of son/daughter goes from 3rd preference to Immediate Relative or 1st preference depending on age of son/daughter when marriage terminated.
Employment Based Petitions
For employment based petitions the priority dates are calculated as follows:
-First preference (or any category not needing labor certification): The date the I-140 petition is filed with USCIS.
-Second & Third Preference: The date the labor certification is filed with Department of Labor.
-Fourth Preference: The date the I-360 petition is filed with USCIS.
-Fifth Preference: The date I-526 petition is filed with USCIS.
Loss of Priority
Registration is terminated for any person who fails to apply for an immigrant visa within one year of notification of availability. Registration may be reinstated within two years of notification if person can show that the failure to apply was due to circumstances beyond the person’s control.