An Analogy To Illustrate The Green Card Process

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In exploring effective ways to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system, I’ve often employed an analogy that aims to illustrate to clients - both aspiring permanent residents and their petitioners - how the green card process works beyond the mere sequence of form filings it involves. The analogy, which likens the green card process to a visit to a department of motor vehicles office, is one that, in my experience, clients have often seemed to find helpful, prompting me to share it here.

Because in my practice area of business immigration law, green card processes are mostly employment-based and involve the successive filing of a ETA-9089 labor certification application, I-140 immigrant petition, and I-485 adjustment of status application (with the first not always required and the latter two sometimes eligible for concurrent filing), I refer to these types of filings to expound my analogy here. But variations of the analogy may be equally applicable to other types of green card processes, such as those in which the aspiring permanent resident will apply for an immigrant visa rather than adjustment of status, as well as those based on family relationships and those available to asylees and refugees. Additionally, in an effort to not only describe the analogy, but substantiate its technical coherence, I spell it out in greater detail here than I do in my discussions with clients.

The trappings of a visit to the DMV are familiar: the issuance of a waiting number determining the visitor’s place in a queue, followed by a long wait for the number be called at one of several counters to file required paperwork, followed yet again by a lengthy wait for the paperwork to be processed, and eventually - hopefully - approved without issue. The counter at which the visitor will be called, and thus the length of the corresponding queue (or maybe in some fortunate instances, the absence of one altogether), may depend on certain factors, such as the type of service the visitor is seeking. For example, renewal of a driver’s license may involve a longer queue, while release of a driving record may involve a shorter one, or perhaps, none at all. The green card process can be thought of in much the same way.

Just as visitors at a DMV are issued a waiting number upon entry into the office, aspiring permanent residents are issued a priority date when the first major filing in a green card process (either the labor certification application or immigrant petition) is submitted, marking the aspiring permanent resident’s “entry” into the process. The priority date is the date this first filing is submitted and determines, once the immigrant petition is approved, the aspiring permanent resident’s place in any existing queue to apply for adjustment of status. Generally, an immigrant petition must first be approved before the adjustment of status application can be filed since legal classification as an “immigrant,” which is signified by an approved immigrant petition, is a precondition to adjusting status from a nonimmigrant to a permanent resident. But if there is no queue, or an aspiring permanent resident is at the front of the queue and thus immediately eligible to apply for adjustment of status, the immigrant petition and adjustment of status application may be processed concurrently, although approval of the latter is contingent on approval of the former. As the adjustment of status application is the last major filing in the green card process, I often explain to clients that this filing can be thought of as the “actual green card application” amongst all of the filings the process involves.

As visitors at a DMV often wait for their number to be called to file their paperwork at the appropriate counter, aspiring permanent residents may likewise face varying wait times for their priority date to be “called” at a designated “counter” to apply for adjustment of status. The “counter” in the green card process at which aspiring permanent residents must apply for adjustment of status is designated based on a combination of two main factors: their immigrant classification (which, when speaking with clients, I refer to colloquially as their “green card category”) and their country of chargeability (which, when speaking with clients, I refer to by approximation as their country of birth). Aside from some significant exceptions outside of the employment-based green card process, the law limits the supply of green cards available each fiscal year. Because the law allocates this limited supply based on a combination of aspiring permanent residents’ immigrant classification and country of chargeability, queues form at “counters” where the demand for green cards under a corresponding classification and chargeability combination exceeds the available supply. And the more severely demand exceeds supply, the longer the queue will be. This explanation can help elucidate why EB-2 and EB-3 immigrants born in India and China are often confronted with waits lasting many years for their priority date to be “called” at their designated counters, [1] while EB-2 and EB-3 immigrants born in most other countries often face no such queue. In technical terms, the existence of a queue at a given “counter” means that the availability of green cards associated with that counter’s classification and chargeability combination is “retrogressed.” Likewise, the absence of a queue means that availability is “current.”

A visit to a DMV often entails a wait of several hours monitoring the movement of waiting numbers until the visitor’s number is called. In the green card process, many aspiring permanent residents similarly track the month-to-month movement of “cut-off dates” in the Bureau of Consular Affairs’ monthly Visa Bulletins for the designated “counter” at which they must apply for adjustment of status. [2] As many readers know, the Visa Bulletin for a given month contains various charts showing whether a queue for filing an adjustment of status application exists for all classification and chargeability combinations, and if so, how long the queue is. Combinations for which there is no queue are assigned a “C” notation, indicating that green card availability for those combinations is current and that the adjustment of status application can thus be filed at any time that month, including in concurrence with an immigrant petition if necessary, and assuming any prerequisite application for labor certification has been approved. Combinations for which there is a queue, and for which green card availability is thus retrogressed, are denoted by a “cut-off date,” with older dates reflecting longer queues. Aspiring permanent residents seeking to adjust status at a “counter” at which green card availability is retrogressed can track their place in that “counter’s” queue by comparing their priority date with the applicable cut-off date each month. Priority dates that fall before the applicable cut-off date in a given month are those that have been “called,” indicating that much like counters at which green card availability is current, an adjustment of status application can be filed at any time that month, including in concurrence with an immigrant petition if necessary, and assuming again that any prerequisite application for labor certification has been approved.

Like processing of paperwork filed at a DMV counter, processing of an adjustment of status application may take a long time. But eventually - hopefully - the application is approved without issue.



[1] Aspiring permanent residents for whom the queue for applying for adjustment of status involves a wait of several years, such as EB-2 and EB-3 immigrants born in India and China, commonly change jobs or employers in the course of their wait. Such a change can require a restart of the green card process since employment-based green card processes are generally job and employer specific. But to allow aspiring permanents residents who change jobs or employers to keep their place in queue, the law permits them to retain their priority date under certain conditions if they are the beneficiary of a previously approved EB-1, EB-2, or EB-3 immigrant petition, and likewise become the beneficiary of an approved EB-1, EB-2, or EB-3 immigrant petition based on their new job or employer. 8 CFR 204.5(e).

[2] US Citizenship and Immigration Service also publishes monthly updates indicating whether to use the Visa Bulletin’s Dates for Filing charts or its Final Action Dates charts, to determine whether an adjustment of status application may be filed.


About The Author

Peter Choi is a business immigration lawyer in private practice. He is a member of the Maryland bar and the American Immigration Lawyers Association, and is a Foreign Legal Consultant registered with the Law Society of Ontario. Peter received his JD from George Mason University School of Law in Arlington, Virginia, where, as a student, he served as a Research Editor of the George Mason Civil Rights Law Journal and interned at the Arlington Immigration Court in the US Department of Justice.


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