Legal Terms

The Priority Date is one of the most important concepts in the US immigration system, determining an applicant's position in the green card queue. For employment-based immigration, the priority date is typically the date the PERM labor certification was filed with the DOL (if PERM is required), or the date the I-140 was filed with USCIS (if PERM is not required, as with EB-1A and NIW). For family-based immigration, the priority date is the I-130 filing date.

The priority date matters because applicants can only file I-485 or proceed with consular processing when the State Department's monthly Visa Bulletin shows a date that is on or after their priority date. For categories without backlogs (such as immediate relatives of US citizens), the priority date is less significant.

Priority date retention and transfer rules: (1) After 180 days of I-140 approval, the priority date is retained even when filing a new I-140 with a different employer ("porting"); (2) if multiple approved I-140s exist, the earliest priority date can be used; (3) in certain circumstances, priority dates can be cross-charged between EB-2 and EB-3; and (4) priority dates are generally calculated by country of birth rather than nationality, and dual nationals may have more flexible options.

The Visa Bulletin is published monthly by the US Department of State and is among the most closely watched documents for immigration applicants. It contains two key charts: (1) Chart A — Final Action Dates, indicating the earliest priority date for which green cards/immigrant visas will be issued; and (2) Chart B — Dates for Filing, showing the earliest dates for submitting I-485 or initiating consular processing. Whether Chart B can be used depends on USCIS monthly announcements.

The bulletin lists dates by immigration category (EB-1 through EB-5, and FB-1 through FB-4) and country of birth (mainland China, India, Mexico, Philippines, and "all other countries"). "C" (Current) means no backlog and immediate eligibility; "U" (Unavailable) means no visa numbers are available for that category.

How to use the Visa Bulletin: (1) Identify your immigration category and country of birth; (2) find the corresponding date; (3) compare it to your priority date — if the bulletin date is on or after your priority date, you are eligible to file I-485 or schedule a consular interview. Applicants should monitor the bulletin monthly to seize filing opportunities promptly.

The Labor Condition Application (LCA) is an application that employers must file with and have certified by the Department of Labor (DOL) before petitioning for H-1B, H-1B1, and E-3 work visas. Filed on Form ETA-9035/9035E, the employer makes key attestations:

(1) Wages — the employer will pay the foreign worker no less than the higher of the "prevailing wage" or "actual wage" (ensuring US workers' wages are not undercut); (2) Working conditions — employing the foreign worker will not adversely affect the working conditions of similarly employed US workers; (3) Strike notice — no labor dispute or strike exists at the worksite; (4) Notice — the employer has posted or electronically provided notice about the LCA to workers at the job location.

Practical LCA considerations: (1) LCAs are typically certified within 7 business days and are a prerequisite for the H-1B petition; (2) the worksite on the LCA is legally binding — if the employee works at different locations (e.g., remote work or different cities), a new LCA may be required; (3) the employer must maintain LCA records in its Public Access File for at least one year; and (4) LCA violations can result in serious consequences including fines and debarment from filing future H-1B petitions.

The Prevailing Wage is the wage standard determined by the US Department of Labor based on a specific occupation, work location, and skill level. The prevailing wage system's core purpose is to protect US workers' wages — by requiring employers to pay foreign workers at least the prevailing wage, it prevents employers from using foreign labor to depress overall wage levels.

Prevailing wages are divided into four levels: Level 1 (Entry, 17th percentile) — for beginning or supervised positions; Level 2 (Qualified, 34th percentile) — for positions requiring some experience; Level 3 (Experienced, 50th percentile) — for fully competent, independent positions; Level 4 (Fully Competent, 67th percentile) — for expert or supervisory positions. Specific wage amounts vary by occupation and geographic area.

Prevailing wage is critical in several contexts: (1) H-1B — the LCA wage must meet or exceed the prevailing wage Level 1; (2) PERM — the offered wage must meet the prevailing wage, or the DOL will not certify the labor certification; (3) in H-1B challenges, USCIS often scrutinizes wage levels to determine whether a position truly qualifies as a "specialty occupation" — Level 1 wages are sometimes viewed as inconsistent with specialty occupation requirements.

Grounds of Inadmissibility, enumerated in Section 212(a) of the Immigration and Nationality Act (INA), are the various circumstances that may result in a foreign national being denied entry to the US or denied a green card. Major categories include:

(1) Health-related — communicable diseases, failure to complete required vaccinations, physical or mental disorders posing a threat; (2) Criminal — crimes involving moral turpitude (CIMT), controlled substance violations, multiple convictions; (3) Security-related — espionage, terrorism, totalitarian party membership; (4) Public charge — likelihood of becoming a public charge (standards updated under 2024 regulations); (5) Unlawful presence — prior unlawful presence exceeding 180 days (triggering 3-year or 10-year bars); and (6) Documentation — fraud or willful misrepresentation.

Importantly, many grounds of inadmissibility can be overcome through waiver applications. Common waivers include the I-601 waiver (based on extreme hardship to qualifying relatives) and the I-212 waiver (for re-entry after prior deportation). Understanding inadmissibility grounds and available waivers is critical for applicants with complex immigration histories.

After an immigrant petition is approved, beneficiaries have two main pathways to obtain a green card: Adjustment of Status (AOS, via Form I-485 within the US) and Consular Processing (CP, via interview at a US consulate abroad). The choice depends on individual circumstances.

Adjustment of Status advantages: (1) the applicant remains in the US during processing; (2) EAD and Advance Parole can be obtained after filing; (3) ideal for applicants already in the US who don't want to disrupt work or life; (4) in some cases, favorable visa bulletin dates can be "locked in." Disadvantages: processing times may be lengthy, and the applicant must maintain lawful status or hold EAD/AP throughout.

Consular Processing advantages: (1) in many countries, the immigrant visa is issued within days of a successful interview; (2) suitable for applicants outside the US or ineligible for AOS; (3) the beneficiary receives a green card upon US entry, rather than waiting additional months post-filing. Disadvantages: requires travel abroad for the interview, no EAD/AP benefits during the wait, and limited appeal options if denied. Applicants choosing between the two pathways should consult an attorney for personalized analysis.

The Public Charge Rule is a provision in US immigration law assessing whether a foreign national is likely to become primarily dependent on the US government's public benefits system in the future. Under this rule, immigration officers consider whether applicants for green cards and certain visas may become primarily reliant on government assistance.

Under the 2022 final rule, USCIS restored the traditional definition of "public charge" as "primarily dependent on the government for subsistence," specifically referring to cash benefits (such as SSI Supplemental Security Income and TANF Temporary Assistance for Needy Families) or government-funded long-term institutionalized care. Use of Medicaid (non-long-term care), SNAP (food stamps), and housing assistance is generally not considered in the public charge determination.

Factors USCIS considers in the assessment include: (1) age; (2) health; (3) family status and household size; (4) assets, resources, and financial status; (5) education and skills; and (6) the financial sponsor (Form I-864). Notably, the public charge rule does not apply to refugees, asylees, certain VAWA applicants, and T/U visa holders.

INA Section 245(i) is a special relief provision that allows certain foreign nationals with status violations (such as unlawful entry or overstay) to adjust to permanent resident status within the US via I-485 without having to depart and process through a consulate abroad. This is critically important because foreign nationals who depart after unlawful presence may trigger 3-year or 10-year re-entry bars.

Key requirements for 245(i) eligibility: (1) the immigrant petition (I-130 or labor certification) must have been filed on or before April 30, 2001; (2) the applicant must have been physically present in the US on or before December 21, 2000; and (3) if the I-130 or labor certification was filed between January 14, 1998 and April 30, 2001, the applicant must additionally show physical presence by December 21, 2000.

Because the 245(i) deadline passed over 20 years ago, fewer applicants can utilize this provision. However, for qualifying families, 245(i) remains an invaluable pathway to safely obtain a green card without the risk of departure and re-entry bars. Applicants must pay an additional $1,000 penalty fee. If you believe you may qualify under 245(i), consult an experienced immigration attorney for a thorough evaluation.