What is a priority date?
A priority date is the date an investor’s I-526E or I-526 petition is officially filed. That date is only established upon approval of the I-526E or I-526 petition and establishes an investor’s place in line for an immigrant visa number. A priority date must be “current” for a Green Card visa to be available for that investor.
Why a priority date matters and what happens next
If an investor has a current priority date, they can move forward in the EB-5 visa process: If the investor is living in their homeland, they can then move on to consular processing; if the investor is already living in the U.S., they can file a Form I-485 for adjustment of status.
Who is a priority date relevant for?
This date is important for investors of retrogressed, or backlogged, countries as it establishes an investor’s place “in line” as they wait for an available visa; in such cases, that investor can only move forward after receiving I-526E or I-526 approval when their priority date is earlier than the Final Action Date on the U.S. government Visa Bulletin.
Visa bulletin & retrogression
This is a monthly chart published by the U.S. Department of State. It lists different Final Action Dates for different immigration categories and countries of birth. Immigration petitioners looking to move forward in the EB-5 visa process need to check this chart to make sure their priority date is either “current” or before the listed Final Action Date for their country.
The listed dates usually move forward and become more recent as time passes; however, in some cases the dates can move back in time if there are too many applications from one country in the system at one time; this phenomenon is know as “retrogression.”
Children, priority dates, and ‘aging out’
A priority date is also important for an EB-5 investor’s children who must be younger than 21 years of age (as well as unmarried) as of that date. Otherwise, the child will “age out” and no longer be eligible for a Green Card. It is important to note that the age of an applicant’s child is “frozen” during the I-526E or I-526 processing period: that means the child’s age remains exactly the same from the date of application till the date of approval.
Dates for filing
In some situations when USCIS wants to ensure they have enough applicants in line for a fiscal year, the Visa Office of the Department of State will let investors file for adjustment of status sooner according to the “dates for filing.”
The “Date for Filing” chart determines when an investor can submit his or her final immigrant visa application, and the “Final Action Date” chart indicates when a visa is expected to be available.
The advantage of being able to file for adjustment of status according to a date for filing is that it allows an investor to file sooner than the final action date and this can impact the applicant’s ability to continue to work legally in the U.S.
Why ‘current’ status on the Visa Bulletin can be misleading for new investors
It should be noted that “current” status for a particular country on the Visa Bulletin does not mean that new petitioners who file an application at that moment will have a visa available upon petition approval.
The reason for this is that EB_5 is a multi-stage process and the Visa Bulletin may only be relevant for investors at second stage, the visa-application stage, and thus applies to investors who have visa processing or I-485 (adjustment of status) processing nearly complete.
The Visa Bulletin may not be relevant for people earlier in the process, such as those in the first stage, the I-526E processing stage who may still be years away from the visa processing or adjustment of status.
As an example, Charles Oppenheim, former Chief of the Visa Control and Reporting Division at the U.S. Department of State, projected in April of 2022 that more than 7,400 Indian applicants were lined up for EB-5 visas as of November 2021, and there was therefore a 10-year backlog for new Indian investors. However, India remained “Current” on the Visa Bulletin until October of 2022.
