EB I-140 Priority Date Retention

For Indian-born immigrants, priority date retention can be an important issue; this post discusses some key things to know about it.

This post relates to priority dates and priority date retention for Employment-Based (EB) immigrants.

Some Background:

• The U.S. government limits how many people can immigrate legally each year. These limits are sub-divided into various categories. There are limits for Family-Based (FB) immigration and separate limits for Employment-Based (EB) immigration.

• In general, there are 140,000 green cards available annually for Employment-Based (EB) immigrants.

• In the last 2 years (FY2021 and FY2022), there have been a lot more than 140k green cards in EB immigration because of some technical rules which resulted in more green cards available during the pandemic.

• There might even be more than 140k EB green cards available in FY2023 (starting October 1, 2022), but unless Congress changes the law, it will likely go back to 140k for 2024 and beyond.

• 140k is woefully inadequate. There is way more demand than supply in EB immigration.

• The annual allotment of 140k EB green cards is replenished every year on October 1, which is the first day of the U.S. government’s fiscal year.

• U.S. law limits how many green cards are issued to natives of any one country. The limit is based on country of birth, not country of citizenship.

• The “per-country limit” means that there are, in theory, the same number of green cards available for people born in China, versus India, versus Iceland, versus Vatican City (which the internet tells me is the country with the smallest population).

• It is kind of silly that India and the Vatican City have the same number of possible green cards. To be clear, I am opposed to this policy and have spoken for about 20 years in favor of a policy change so all nationalities are in the same queue; but the per-country limit is the current policy and so we have to try to operate as best as possible until the law changes.

• As a result of the policy of “per country limits,” there is a very long backlog for the countries with high population.

• As of the date of this writing, in August 2022, India currently faces the worst backlogs in EB immigration, that is, so many Indians seek to immigrate that the most common categories are oversubscribed and there is basically a huge waitlist (or backlog).

• The backlogs mean that people from India often have to wait a very long time to get an EB green card. It is hard to know precisely how long the wait times are, but Indian born professionals could easily have to wait 10 years for EB-2 and EB-3.

• Because Indians face long backlogs, they often need (and/or want) to change employers while they wait; and/or maneuver themselves in a faster moving category.

• Priority date retention is an important way for Indians to have some modest flexibility while they wait to complete the green card process.

• A priority date is essentially a person’s “spot in line” for a green card.

MORE AFTER THE PAYWALL!