No access to I140 - Can I switch and carry forward Priority Date?

[psudhanshu1]

Hi,

My current employer has filed my green card in EB3 category and the I140 is approved. However, they do not send us a copy of the I140, not even electronic copy

So my question is whether I can switch to another employer and somehow still carry my priority date?

If the new employer agrees to file in Eb2 category, can we still port that priority date?

Any insight is greatly appreciated

Regards,

Sudhanshu

[BigJoe5]

You are a bit confused.

You journey to LPR status (a greencard) begins with a visa petition. In your case and employer filed an I-140 for you. That is merely a first step. You say it was approved as EB-3. You did not state the filing date. The filing date becomes the priority date for visa issuance or adjustment filing purposes. Retention of the original priority date is possible and is explained in the following regulation.

8 CFR § 204.5

(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

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After an actual I-485 is filed and remains pending for 180 days or more, "portability" under AC21 may be possible.

See INA 204

(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE-

A petition under subsection (a)(1)(D)for an individual whose application for adjustment of status pursuant to section

245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

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It is further explained in Matter of Al-Wazzan, 25 I&N Dec. 359 (AAO 2010)

http://www.justice.gov/eoir/vll/intdec/vol25/3699.pdf

[psudhanshu1]

Thanks BigJoe5

The filing date was around Dec 2010

The rules you have provided above make the situation very clear, but could you please clarify if it's necessary to obtain a copy of I140 to port the priority date through the new employer. I don't have that copy and not even the receipt no. If that's a must, can I obtain it by contacting USCIS directly?

[Attorney_22]

Generally, you should be able to obtain a copy of the I-140 Approval Notice by filing a Freedom of Information Act (“FOIA”) request. You can do so at www.uscis.gov. To discuss this in more detail please speak with a qualified U.S. immigration attorney directly.