EB3/EB2 Upgrades: Issues with Retaining the Original Priority Date

[Attorney_3]

This week, the Murthy Law Firm attorneys will answer questions about the retention of priority dates in a new I-140 petition.  

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[Attorney_16]

We have seen many situations when an individual has initiated a U.S. permanent residence process through an employer, in the employment-based third preference (EB-3) category (bachelor’s degree holder, skilled worker, or other worker category), only to later on find themselves in a new job qualifying them for an advanced degree professional category (EB-2) and desiring to refile the case.  When this happens a question arises about being able to retain the priority date from the original EB-3/ I-140 approval onto the new EB-2/ I-140 approval.  The regulations indicate that a Beneficiary may retain a priority date from a previous I-140 petition for any subsequently filed and approved I-140 petition.  If there are multiple petitions, then the Beneficiary can retain the earliest priority date. 

 

Some confuse this rule with AC21 portability, in which the PERM is approved, the I-140 is approved and the I-485 is pending for more than 180 days.  In that AC21 portability situation, the employee that moves or changes jobs must show that the new position is in the same or similar job classification in order to “port” or move the case over and not start the process over.  Retaining a priority date from a previous petition is different.  One must start the case over from the beginning, redoing the labor certification and the I-140 but can retain the priority date of the original approved I-140 even if it is in a different job classification or a different preference category.  As long as the original I-140 petition remains valid, it is sufficient to be able to “copy” the priority date from the first case and “paste” it into the second I-140 at the time of approval, with both I-140s remaining valid. 

 

Now what happens if the original I-140 is no longer valid? The regulation further indicates that a petition that is revoked will not confer a priority date.  However, the USCIS Adjudicator’s Field Manual Chapter further clarifies that the priority date cannot be retained for a petition that was revoked for “fraud or willful misrepresentation” only, indicating that if it was withdrawn for any other reason perhaps the individual could still retain the priority date.

[Attorney_15]

What is also really interesting is that this is not only USCIS's interpretation, but it's Department of State's interpretation! The Foreign Affairs Manual, which is the guidebook of guidance for Consular Officers and all the other State Department employees, includes the exact same language. This policy of porting the priority date has been around since September 1992! Usually porting the priority date is done without a problem and USCIS will even fix an I-140 Approval Notice if we contact them as soon as we get the I-797, pointing out that the earlier date exists and that we had (as we of course do) included this information in the I-140 filing that they just approved!

 

This is extremely helpful from USCIS, but if more time has passed it could still be possible to get the priority date ported by going through a congressman's office or an employer filing the I-824 for a duplicate I-140 notice and asking in the I-824 for the earlier priority date to be transferred.

[Attorney_27]

Recently there has been a case where USCIS found that an individual, who was the Beneficiary of multiple I-140 petitions, was not eligible to retain his earliest priority date. USCIS found the individual to be ineligible to retain his priority date since his request was made after the related I-140 was withdrawn by the individual's employer and subsequently revoked by USCIS. USCIS' decision may reflect a change in its long-standing, favorable policy, which allows employees to retain their priority dates even after revocation. A recent, non-binding decision by the Board of Immigration Appeals (BIA) also highlights this possible shift in the described favorable policy. In In Re Grace Estrellado, the respondent attempted to retain her priority date from her original I-140 petition which had subsequently been withdrawn by her employer and revoked by USCIS. The respondent's second I-140 petition has a later priority date which was not yet current. The BIA held that due to the respondent's inability to retain the priority date from her first I-140 petition, she was not eligible to adjust her status to lawful permanent resident.

[Attorney_20]

Although USCIS has long permitted retention of the priority date after the withdrawal of the I-140, the law provides that the priority date is retained unless the I-140 petition was revoked for “good and sufficient cause,” which is an undefined and ambiguous term that may give USCIS room for reinterpretation. 

 

USCIS’s Adjudicator’s Field Manual (AFM) states that “[e]stablishment, maintenance and loss of priority dates is a relatively complex topic… Among the circumstances which may effect [sic] a priority date are… withdrawal or denial of a visa petition.”  [Emphasis added.]   AFM ch. 20.1(b).

[shetty1891]

Hello Attorney,

 

Thank you for the detailed information on retaining priority date, the information is very helpful.

Can you please advice if priority date can be maintained if we do not have a copy of I140?

 

Had Labor and I140 approved from Employer A (I140 approved in Sep2014)  and got H1 extension(for 3 more years) beyond six years in october 2014.

 

But Employer A refused to share the I140 approval copy . Now if i change my employer i know i should start a fresh labor and I140 , but is it possible to retain my priority date with out the copy of I140.

 

Also is it possible to get a copy of I797c(I140 notice) from Dept of Homeland.

[Attorney_23]

Hello Attorney,

 

Thank you for the detailed information on retaining priority date, the information is very helpful.

Can you please advice if priority date can be maintained if we do not have a copy of I140?

 

Had Labor and I140 approved from Employer A (I140 approved in Sep2014)  and got H1 extension(for 3 more years) beyond six years in october 2014.

 

But Employer A refused to share the I140 approval copy . Now if i change my employer i know i should start a fresh labor and I140 , but is it possible to retain my priority date with out the copy of I140.

 

Also is it possible to get a copy of I797c(I140 notice) from Dept of Homeland.

 

You can request a copy of the approved I-140 by filing a Freedom of Information Act (FOIA) request with the USCIS. You can read more about FOIA requests here:

 

FOIA Request Can Help Resolve Some Immigration Cases

 

If you would assistance in filing a FOIA request, please schedule a consultation with a Murthy Law Firm attorney.