Issue on recapture of Priority Date from previously filed I-140

[ppneedshelp]

Dear Experts,

Here are the history and my current situation.

1) I had an approved I140 with approval notice date of 20 Jan 2016 I am no longer with that employer as he was not paying me

2) I am with new employer and had applied new I140 but received RFE and per RFE my previous I140 was revoked on 7 Sept 2016 (I am not sure who/why revoked it. I know for a fact that Wage and hour division has an impending case on my previous employer for violations) the revoke date is well beyond the 180 day rule so my understanding was PD can still be ported

[Exactly language on the RFE is attached as screenshot  " Submit documentary evidence to establish that the petition associated ...... " ]

BUT :( my current employer/attorney is telling me I am just unlucky and I lose 5 years of PD. They are saying prior memo seemed to allowed porting but was not a clear rule . A new rule that went into effect only on January 17, 2017 establishes the 180 day requirement for an approved I-140 to survive withdrawal.  The rule explicitly says that it is not retroactive:

https://www.federalregister.gov/documents/2016/11/18/2016-27540/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled#p-365

This means that the 180 day protection applies starting January 17, 2017. 

What do I do how to answer the RFE so that I don't lose 5 years of wait time. 

 

 

[JoeF]

If the lawyer says it's not going to work it most likely isn't going to work.

There may also the issue that if there is an investigation of the old employer, the I-140 may have been revoked by USCIS for fraud, in which case the 180 day rule doesn't apply, anyway.

[pontevecchio]

Unless revoked for fraud, pd retention has always been possible. Get a good lawyer involved.

[JoeF]

2 hours ago, pontevecchio said:

Unless revoked for fraud, pd retention has always been possible. Get a good lawyer involved.

Yes, but before the Jan. 2017 rule, it required that the I-140 wasn't revoked.

[ppneedshelp]

21 hours ago, JoeF said:

If the lawyer says it's not going to work it most likely isn't going to work.

There may also the issue that if there is an investigation of the old employer, the I-140 may have been revoked by USCIS for fraud, in which case the 180 day rule doesn't apply, anyway.

I am not sure if I still have a whole lot of confidence with my current attorney. Dont know, if I can switch attorneys in between RFE.

question

1) Anyway we can find out why it was revoked

2) Tips to reply back to RFE without loosing the PD (I am guessing someone should have had experienced dealing same issue in the past)

Any guidance/help please

 

[pontevecchio]

I would clarify the matter of PD retention by quoting from the Murthy site

""I-140 Priority Date Retention Proposal

The proposed regulation clarifies that the beneficiary of an approved I-140 petition would be able to retain the priority date unless the I-140 is revoked due to error, fraud, or misrepresentation, or upon revocation or invalidation of the corresponding labor certification. The ability to retain one’s priority date after approval of the I-140 petition is key when making job changes. Current U.S. Citizenship and Immigration Services (USCIS) policy already generally allows for priority date retention, as long as the approved I-140 has not been revoked by the USCIS for fraud or misrepresentation. However, while the USCIS has repeatedly confirmed this policy, there have been some inconsistencies in how the policy has been implemented. Therefore, enacting a regulation that provides clear protections in this regard could be beneficial".

 

The 180 days is NOT A NEW RULE.

@OP, where did you get the 5 years from?