INS on Western Hemisphere Priority Dates

On October 1, 1994, the provisions of section 245(i) of the Immigration and Nationality Act (Act) became effective. Section 245(i) of the Act allows aliens residing in the United States, who previously were required to depart the United States to apply for an immigrant visa, to apply for adjustment of status if they pay a penalty fee.

As a result of section 245(i) of the Act, the Service will likely accept more applications for adjustment of status filed by aliens who claim to have priority dates under the old Western Hemisphere immigrant visa quota which terminated in 1976. A savings clause contained in the Immigration and Nationality Act Amendments of 1976 preserves these pre-1977 priority dates: The old Western Hemisphere priority dates can be applied to any approved immigrant petition. Before the enactment of section 245(i) of the Act, aliens claiming entitlement to these priority dates, applied for immigrant visas, primarily with the U.S. consulate in Ciudad Juarez. Many of these aliens are now eligible to apply for adjustment of status.

As proof that they may use an old Western Hemisphere priority date, the alien may have correspondence from the Department of State, National Visa Center. In cases where the priority date on the letter from the National Visa Center indicates a pre-1977 priority date, the alien has likely established a Western Hemisphere priority date. Local offices should accept the pre-1977 priority date as indicated in the correspondence from the National Visa Center, even if it differs from the priority date given on the notice of approval. If there are any doubts or questions concerning the priority date, the office should contact the National Visa Center at 603/334-0793.

There may also be instances when the alien requests a service center or local office to accord him or her a Western Hemisphere priority date. Note 5.5 to section 42.53 of Volume 9, Foreign Affairs Manual explains eligibility for Western Hemisphere priority dates. If a service center or local office is unable to determine whether the alien is entitled to a Western Hemisphere priority date, please send any materials submitted in support of the claim to HQADN, Room 3214, Attention: Edward Skerrett for a determination. HQADN will request an opinion from the Department of State, Visa Office.

If there are any questions concerning this matter, please contact Michael Straus, HQADN at 202/514-3228.

James A. Puleo

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