I-140: Retaining Priority Date


sandeep_bom1

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Hello Sir/Mam,

 

I have my I-140 revoked by previous employer. And I learned from other posts that we can try to retain this date.

My current employer is going to start my green card process and I asked them about retaining I-140 date. But lawyer of my current employer said it can not be retained.

 

He replied following:

 

His previous I-140 case shows:
Decision 
On November 16, 2013, we mailed a notice acknowledging withdrawal of this application or petition I140 IMMIGRANT PETITION FOR ALIEN WORKER. If you have not received the notice within 30 days of November 16, 2013, contact our customer service at 1-800-375-5283. If at some point in the future you wish to pursue the benefits provided by this application or petition, you must file a new application along with all applicable fees and evidence.
During this step the formal decision (approved/denied) is written and the decision notice is mailed and/or emailed to the applicant/petitioner. You can use our current processing time to gauge when you can expect to receive a final decision.
That would mean he has lost his previous priority date.
 
Then I replied him that I can find information online as follows:
General Policy on Priority Date Retention
The long-standing Legacy INS and USCIS policy on retention of EB priority dates after I-140 revocation is favorable. The policy allows individuals to keep their (older) priority dates from approved I-140 petitions even after revocation in most instances. However, some questions arose regarding the continuation and uniform application of this policy.
 
Exception to Priority Date Retention
The older priority date will be retained, as long as the earlier-dated I-140 was not revoked by the government for reasons of fraud or misrepresentation. With this confirmation of policy on the part of the service centers, there should not be a risk that a former employer will cause the loss of a priority date simply by withdrawing an approved I-140 after an employee leaves. 
 

But he replied again as:

Attached to this email are the notes of a telephone conference between AILA and the USCIS Nebraska Service Center on April 12, 2012 which discusses what is posted on the Murthy website.  It is point # 2.  Now, keep in mind, these are statements (not law) about conversations that the USCIS has had internally.  Laid out below is the law, including the Immigration and Nationality Act (INA) provisions, the regulations and the policies of the USCIS:

 

The regulations at 8 CFR 204.5(e) state: 
 
"A petition [i.e., I-140 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." 
 
This regulations also state that a priority date will not be retained for a petition revoked under section 205 of the Immigration and Nationality Act.  Section 205 of the Act states: 
 
“The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.”
 
The regulations interpreting section 205 of the Immigration and Nationality Act state at 8 CFR 205.1(a)(3)(iii)© that an I-140 petition shall be automatically revoked “upon written notice of withdrawal filed by the petitioner, in employment-based preference cases, with any officer of the Service who is authorized to grant or deny petitions.”
 
The law stated above essentially states that an individual, like Sandeep, may retain an earlier priority date which can be applied to any subsequent employment-based I-140 as long as the I-140 is not revoked or is withdrawn by the employer.  A major exception to this law was created by policy when the President signed into law the American Competitiveness in the 21st Century Act (“AC21”).  AC21 gave rise to a new provision in Immigration and Nationality Act [204(j)] and the USCIS policy on this new provision is now embedded in Chapter 20.2 of the USCIS Adjudicator's Field Manual which states:
 
“Pursuant to the provisions of section 106© of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313, the approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs, if: 
 
1.     A Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more; and 
 
 
2.     The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made. 
 
 
If the Form I-140 has been approved and the Form I-485 has been filed and remained unadjudicated for 180 days or more (as measured from the form I-485 receipt date), the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as the new offer of employment is in the same or similar occupation. If the Form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment. 
 
 
Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106© of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the USCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has not established that the new offer o f employment is in the same or similar occupation, the adjudicating officer may immediately deny the Form I-485. If the alien does not respond or fails to timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny the Form I-485. 
 
If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied. If at any time the USCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for the job flexibility provisions of §106© of AC21 and the adjudicating officer may, in his or her discretion, deny the attached Form I-485 immediately. In all cases an offer of employment must have been bona fide, and the employer must have had the intent, at the time the Form I-140 was approved, to employ the beneficiary upon adjustment. It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106© of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act.”
 
This AC21 exception concerning the individual’s ability to retain an earlier priority date when an employer withdraws or revokes an approved I-140 is predicated on the fact that the individual entered adjustment of status and was in adjustment of status (i.e., the last step of the three-step permanent residency process) for at least 180 days.  I do not believe that Sandeep ever entered adjustment of status.
 
The bottom line is that the information that Sandeep is referring to (statements made at a teleconference) do not line up with the law as it presently exists.  If the statement were correct that an individual could retain his priority date no matter what happened or when it happened, then the provisions above would be rendered meaningless.
 
Please advise me whether there are still chances of retaining I-140 date or not.
 
Thanks,
Sandeep
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