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Do I Qualify For A Western Hemisphere Priority Date?

Question:

“It seems like I have waiting forever for my green card. I was told that I have to wait until my priority date is current. My U.S. citizen brother filed papers in 2005. They are only taking 1997 cases right now. A notario told me that she can help me right away. She said we can use a Western Hemisphere Priority Date instead of my brother’s priority date. I have never heard of this before. Is this true?

(Submitted by Luis W., Santee, CA)

Answer:

Yes, in fact, there are Western Hemisphere Priority Dates (WHPD). This is one of those areas of immigration law that very few people understand.

If you can qualify, they do speed up the immigration process.

Based on my experience as a family visa lawyer, I believe there are many immigrants who could use a Western Hemisphere Priority Date – but who fail to take advantage of this shortcut to becoming lawful permanent residents.

Often times, this happens because the persons helping green card applicants do not know how WHPD policies work. So, I am pleasantly surprised you were informed about this possibility.

That said, we have to explore whether you qualify.

First, what is a Western Hemisphere Priority Date?

This law goes back to 1977. At that time, the immigration system in the U.S. was not the same as it is today.

It is often called by immigration insiders as a “savings clause”. This means it preserved priority dates for immigrants living in the Western Hemisphere – including both North and South America, as well as the Caribbean Islands – who registered and qualified for immigration benefits before January 1, 1977.

So how does this apply to you?

You did not give details about your family’s immigration history above. But I suspect you mentioned how and when one of your parents came to the United States in your discussions with the notario.

In short, if your father immigrated, or registered and qualified to immigrate, before 1997, you may benefit from his old petition.

Given what you have shared, I perceive two possibilities under which you might qualify to use a WHPD priority date.

  • If your father filed papers by the January 1, 1977 date, and you were under 21 and not married, you can “recapture” and use your father’s priority date.
  • If your father filed papers by the January 1, 1977 date, even if you were not yet born, you qualify so long as your mother and father were married on the date when your father filed his papers.

Here’s another significant, yet rarely used, component of WHPD law.

If you qualify to recapture your father’s priority date, and you are now married and have children, your spouse and kids are also immediately eligible to immigrate using his WHPD priority date in tandem with your brother’s petition.

However, like all immigration petitions and applications, proving you qualify is not as simple as it appears. If you’re like most individuals I’ve helped, it will take a few months to gather all the necessary evidence to show you qualify under an old WHPD priority date.

If you can demonstrate your eligibility, you can speed up your brother’s immigration petition and become immediately eligible to proceed to a green card interview.

Of course, there are other issues, like your immigration history and criminal convictions, which can still disrail you.

In conclusion, WHPD policy is real. Whether you can benefit from an earlier immigrant petition requires a deeper assessment of your family’s background.

As I view your case, it seems you should talk to an immigration lawyer who knows the rules for Western Hemisphere Priority Dates to discuss this matter more fully.

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By Carlos A. Batara

(Filed Under Q&As: Family-Based Visas And Immigrant Petitions)