Transfer of Priority Date and Cross-chargeability of EB Based Immigrant Visa

A beneficiary, along with her/his family members, of an employment based immigration petition (I-140) is eligible to file adjustment of status (I-485) or consular processing if immigrant visa number is available to her/his category.  To determine the availability of the visa number for I-485 or consular processing, the principal applicant’s priority date must be on or prior to the “cut-off date” published by the Department of State in the visa bulletin that is updated monthly. 

How to Establish a Priority Date

The priority date is the date that an alien initially expresses his/her intent to immigrate to the United States through an appropriate petition. For employment-based immigration petitions in EB-1, EB2 and EB-3 categories, the priority date is the earlier date of the filing of the labor certification application (PERM) or the date of the filing of the I-140 petition.  In general, the spouse and children of the principal applicant will be assigned the same priority date as the principal applicant. 

Under the current visa number allocation system, each country is assigned a limited number of immigrant visas every year.  If the visa number for a particular country is oversubscribed, applicants from that particular country will be subject to visa retrogression and have to wait for the priority date to reach the published cut off date. 

How does the foreign state chargeability work?

The determination as to which country’s quota an applicant or beneficiary gets charged to is important when countries are oversubscribed. The general rule is that the applicant or beneficiary is chargeable to country of birth of the principal applicants.  The nationality or citizenship of the applicants do not count for visa number chargeability purposes .

However, there is a “cross-chargeability” exception that allows the visa number for a principal applicant to be charged to the country of birth of the accompanying spouse if the visa number for the same category of the spouse’s country of birth is available.   In addition, alien children may be charged to the foreign state of either parent when accompanying or following to join their parent(s).  Please note, however, the children’s place of birth will not offer benefit to their parents with respect to the cross-chargeability rule.

For example, Dr. Chen is a Post-doc born in China, and he married Ms. Kim who was born in Korea.  Dr. Chen files I-140 petition under the EB-2 NIW category in September 2006.  There is no current visa number for EB-2 China-born applicants  in September 2006.  However, the visa number for EB-2 Korea-born applicants is available.  Therefore, Dr. Chen and Ms. Kim may file I-485 concurrently with Dr. Chen’s NIW since Dr. Chen’s visa number may be charged to Korea’s visa number. 

An Earlier Priority Date May Be Transferred to a Later Petition

For an I-140 petition filed under the EB-1, EB-2 or EB-3 categories, the priority date of the approved petition is preserved for any petitions subsequently filed under these categories.  However, priority date is transferable only if the I-140 associated with that particular priority date has been approved and there is no subsequent revocation due to fraud.    Please note, the approval of a labor certification does not offer a transferable priority date. 

For example, Mr. Lin filed a PERM EB-3 Labor Certification sponsored by Company A in May 1, 2005 and the PERM petition was approved in September 26.  He subsequently filed an EB-3 I-140 and the case was approved in November 2005.  However, before his priority date became current to file an I-485, Mr. Lin was laid off by Company A.  Fortunately enough, he got a new job with Company B, and successfully obtained an H-1B transfer.  Later, he filed an EB-2 PERM petition sponsored by Company B in July 2006 and was approved in September 2006.  In such a circumstance, Mr. Lin will be able to transfer the priority date established by the PERM and I-140 petitions filed by Company A (May 1, 2005) to his I-485 application to be filed with Company B’s I-140.

(09/29/2006)

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