PD Porting on EB3 to EB3

[Sakira]

I found postings regarding Priority Date on AC21, H1B, and EB3 to EB2 on this forum. Also found Attorney Murthy's chat log in 2005 that addressed similar question but could not find any specific EB3 to EB3 portability postings anywhere online, thus this posting here with request for insights from experts.

The first EB3 I-140 was approved but revoked after interview for I-485. I-485 was automatically denied upon revocation of I-140. Both I-140 and I-485 were concurrently filed when the PD was current. That is on appeal with AAO. It was not revoked for fraud or misrepresentation or by the employer. Afterwards a new process from different employer was initiated for EB3. The new job is not similar to the old, college degree was attained in the mean time. New labor and I-140 has been approved but PD is not current to apply for Adjustment of Status. The previous PD, which is current, was not requested when applying for this I-140.

Will the I-485 application with previous PD be accepted by USCIS in this situation? Are there any downside if the application is not accepted for the case later on?

Thanks.

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[Belle]

You need a consultation with a good lawyer. I guess the main issue is whether I-140 should have never been approved or circumstances changed between filing and the revokation. If the I-140 was good when filed, then you should be able to keep the PD. That said, the USCIS may need some skillful convincing to get it done.

[Sakira]

Thank you for the response. I think it was fine when I-140 was filed and approved. The attorney who filed labor and I 140 was convicted on immigration fraud for other cases. The interviewer asked very detailed questions during AOS. When asked exact dates of work experience could not be recalled during AOS interview. USCIS claimed that to not have met the requisite experience and revoked it even though other evidence was provided. Therefore a new process was started.

What is worst possible outcome if I 485 is filed with a letter asking for previous PD? Would they accept the application fee but deny the request? Would it make it more difficult when the new PD became current and application for AOS was filed again?

I have consulted attorneys and have received conflicting answers.

[Belle]

It looks like your I-140 approval may have been recalled on serious grounds. Again, talk to a lawyer about it.

If you file I-485 with PD retention from an earlier I-140, and the PD retention does not happen, then the I-485 will be rejected, and the whole package will be sent back to you. It won't reflect in any way on your future filings. However, since you had another AOS denied, I would assume that the USCIS will dig into your case, even if the PD is retained. It is quite possible that your case may be accepted and later denied as PD is recalled.

I would talk to an experienced lawyer. Maybe two. Good luck!

[Sakira]

Thank you Belle.

All the attorneys have different answers. I had consulted two attorneys. Today I consulted third one and he opened a new front. And all the consultations costs quite a bit.

He said if they implied that the requirement was not met for I-140, the labor cert may not be valid. And if I-140 was revoked the PD could not be retained for new case, period- this is different from other attorneys who had qualified responses on it. And this issue would come up in the AOS stage for the new process once the PD became current and that they would deny it on grounds of possible misrepresentation. The previous attorneys had said it would not be an issue.

Not sure who to go or perhaps should consult one more attorney? I'm in DC area.

[Belle]

I don't think you have a high risk of being slapped with misrepresentation for trying to use the PD (unless it is somehow comes form your interview and the revoked I-140). You had an approved I-140 and you tried to use the date, it's not prohibited.

Your LC should not be affected. If your appeal goes through, your I-140 will be restated. You can certainly try to use the old PD while the case is in appeal.