Help! I think my priority date may never become current!

With the visa bulletin showing major retrogressions, and unavailability in some categories, many foreign nationals may be reconsidering their employment-based permanent residence strategies. In fact, this is a great time to re-evaluate and develop a new strategy, if possible. While the visa bulletin may not show improvements until the start of the new fiscal year in October, this gives you plenty of time to investigate your options and perhaps start a new employment-based permanent residence process. You should always consult with an experienced immigration attorney before taking or refraining from taking any actions. Here are some points you should consider:

  1. If you are married, you may be able to take advantage of something called "cross-chargeability." A foreign national is "charged" to the country in which he or she was born for purposes of determining when a green card is available. So if foreign national Sam was born in India, his country of chargeability is India, even if he later becomes a citizen of Canada. However, let's say that Sam is married to Samantha, who was born in France. When Sam submits his I-140 petition, he can ask for USCIS to apply cross-chargeability and use France, his wife's country of birth, for purposes of determining when a green card is available. This is true even though Sam is the beneficiary of the I-140 petition.
  2. If you currently have an approved I-140 petition in the EB-3 category, you may be able to "upgrade" your EB-3 permanent residence filing to the EB-2 category. This is usually advantageous as the EB-2 category generally is not as retrogressed as the EB-3 category, and may even be current depending on your country of chargeability. How do you do this? There are several factors to consider before doing so, including whether the position is one that requires at least a master's degree (or the equivalent, which for this purpose is a single-source four year degree followed by at least five years of work progressive work experience), whether the employer has the ability to pay for an EB-2 salary, and other considerations. Keep in mind that "upgrading" your EB-3 to EB-2 will require filing a new labor certification, and then filing a new I-140 petition. If you have an I-485 application for permanent residence pending, you may be able to inter-file, meaning connect the new EB-2 I-140 petition to the pending I-485, once/if the priority date is current. Further, if your EB-3 I-140 petition is already approved, you can port your priority date. This means that you can use your EB-3 priority date on the second EB-2 I-140 filing. That way you get the best of both - older priority date and a less-retrogressed category.
  3. If you have an approved EB-2 I-140 petition, you may be able to upgrade to an EB-1 petition. The EB-1 category has three sub-categories: the EB-1A for aliens of extraordinary ability, the EB-1B for outstanding researchers/professors, and EB-1C for multinational managers and executives. For more information on the EB-1 category, see: and

To develop a strategy to beat the the visa bulletin blues, contact Emily Sumner at today!

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