Retaining Employment-Based Priority Date for Future I-140 Filings
August 28th, 2012 by Andrew M. Wilson
One common question that we frequently receive is whether it is possible to keep a priority date from a previously approved I-140 and use it for future green card filings. An example reads:
Example
Individual has approved PERM labor certification application filed through Company A. Individual subsequently has I-140 petition under EB-3 preference category approved through Company A with priority date of June 1, 2010.
Individual has had H-1B extensions beyond six years under AC21 through Company A based on the pending green card paperwork.
Individual now wants to join Company B and needs to know whether an H-1B extension under AC21 can be filed through Company B based on green card paperwork pending from Company A and whether the earlier priority date of June 1, 2010 may be used in new green card paperwork through Company B that will fall under the EB-2 preference category.
In general, an H-1B extension under AC21 may be filed through a subsequent employer based on green card paperwork filed from a current/previous employer. Also, the individual may be able to retain the earlier priority date for future green card filings, even if under a different preference category. This ability to retain an earlier priority date is particularly important for nationals of India and China who are subject to long priority date backlogs.
If possible and if you are applying for H-1B extension beyond 6 years under AC21 through a new employer, it may be prudent to obtain the new H-1B approval through the new company before leaving your current company. One risk in general is that the new H-1B through the new company is denied and you already left your current company. Another risk is that your current company withdraws your approved I-140 before the H-1B through the new company is approved, and that could affect your H-1B extension eligibility under AC21. You therefore may want to consider premium processing for the new H-1B filing.
If you have not been able to file 485 paperwork because your priority date is not yet current, you cannot take your current green card paperwork with you to the new company and file 485 portability paperwork. You will have to start a new PERM process through the new company, but you should be able to retain your priority date even if your current company withdraws your I-140.
Under applicable CIS and field manual guidance, an individual may use the priority date from an approved EB-1, EB-2 or EB-3 I-140 petition for a subsequently approved EB-1, EB-2 or EB-3 petition as long as the earlier approved I-140 was not revoked for fraud or misrepresentation.
CIS updated the Adjudicators Field Manual (AFM) in 2005 and 2006 to clearly confirm that if a foreign national’s I-140 is approved, the foreign national retains that priority date for future I-140 petitions unless the prior approved I-140 was revoked due to fraud or willful misrepresentation. Interim guidance on this issue was provided in an Interoffice Memorandum (HQPRD70/6.2.8) dated September 23, 2005 from William R. Yates, Associate Director, Operations. This interim guidance to revise Chapter 22.2(b)(5)(A) of the AFM reads:
(A) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successorship in interest).
CIS finalized its update and officially revised Chapter 22 to the AFM through an Interoffice Memorandum (HQPRD70/23.12) dated September 12, 2006 from Michael Aytes, Acting Associate Director, Domestic Operations. The Aytes memorandum revises the AFM, which is binding on adjudicators pursuant to AFM Section 3.4. This memorandum revised Chapter 22: Employment-based Petitions of the AFM to read:
(1) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successorship in interest).
The current version of the applicable provision of the AFM at Chapter 22.2(d) now reads:
(1) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successor in interest).
Further guidance on the proper interpretation of retention of priority dates is provided by in the Foreign Affairs Manual at 9 FAM §42.53 N3.5 Subsequent Petition in Employment-based Classifications:
a. Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a priority date accorded by approval of an employment-based first, second, or third preference petition is retained by the beneficiary for any other first, second, or third preference petition approved subsequently for the same beneficiary. In all cases, the beneficiary of multiple petitions is entitled to the earliest of the filing dates of the various petitions.
You therefore should be able to retain your priority date, but you will need to start a new PERM process through the new company.
