RETAINING PRIORITY DATES

In the case of Employment based immigrant petitions, the priority date is the date on which a Labor Certification is filed (as in the 2^nd and 3^rd preference categories) or, in cases where no labor certification is necessary (as in the case of 1^st preference and Schedule A cases), the date on which the I-140 Immigrant petition is filed with the INS. Similarly, for Family based immigrant petitions the priority date gets established upon the I-130 immigrant petition being ‘properly filed’. This article deals with the question of retaining priority dates from one employment based (EB) application to another and from one family based petition to another.

In an Employment based case, the question of being able to retain an earlier priority date often arises where an employer sponsors an employee for a Green Card and after the I-140 has been approved, and while the I-485 Adjustment of Status application is pending, the employee leaves the first employer for another job. While the new employer would have to begin the process again and file a fresh immigrant petition, the employee can retain the original priority date. This ability to transfer priority dates also exists when substituting a new I-140 from one EB based category to another. This option allows the employee to benefit from a faster processing time that may exist for, say, the EB2 category as compared to the EB3 category. In other words, a priority date in any approved EB1, EB2 or EB3 preference petition can be maintained and used for any subsequent petitions in any of those categories (and even if there is a change of employer) provided the original I-140 has been approved in the first case. The beneficiary of multiple I-140 approvals would be entitled to the earliest priority date. A revoked or denied petition will not confer a priority date.

Similarly in a Family based case, it is also possible to substitute a new I-130 in a different preference category and this might also work to the benefit of the beneficiary. The issues here are more complex since certain family based petitions automatically get converted to other categories on the happening of certain events, such as the following, but in each case the priority date could be maintained.

• 1^st to 3^rd preference, upon marriage of son or daughter
• The child of a U.S. citizen who marries, converts from an immediate relative to 3^rd preference
• The divorce of a child converts from 3^rd preference to immediate relative
• The child beneficiary of an immediate relative, on reaching 21 converts to 1^st preference
• Naturalization changes the 2^nd preference child to an immediate relative or 1^st preference petition (the child of a 2^nd preference spouse beneficiary requires the naturalized U.S. citizen to now file a separate immediate relative application)
• The child accorded 2A status under the 2^nd preference (spouses and unmarried children of an LPR), on reaching 21, requires that a new petition be filed under the 2B status (unmarried sons and daughters of LPRs)

Derivative Beneficiaries: The spouse and children of the alien beneficiary, who are eligible for derivative status, are entitled to the same priority date as the alien. In an Employment based petition this priority date remains intact for the spouse and child provided they remain eligible for an immigrant visa in derivative status. If, for instance, the marriage is terminated or the child reaches the age of 21, the derivative spouse and child would no longer be eligible for an immigrant visa and would lose the priority date. However, children and spouses who are acquired after the granting of an immigrant visa but before the alien’s admission to permanent residence would be eligible to use the same priority date. In a family based 2^nd preference petition however, a ‘child’ who reaches the age of 21 before the parents residency is obtained, can retain his earlier priority date even though the parents must file a new 2^nd preference petition for the child.

Loss of Priority: What is not permitted is the retaining of a priority date if substituting an employment based I-140 petition, for a family based I-130 petition. Also not permitted is re-using a priority date where the INS revokes an I-140 approval due to fraud or misrepresentation. The priority date is then lost. The priority date would also be lost, and the Secretary of State shall terminate registration if the applicant fails to apply for an Immigrant Visa within a year of being informed of its availability. But the secretary can, within 2 years following the notification, reinstate registration if the person can establish that the failure was due to circumstances beyond his control.

The INS has issued a Memorandum (Pearson Memo) on May 9^th 2000 clarifying the position for substitution of Immigrant petitions in pending adjustment applications. Accordingly a person can now substitute an approved I-130 or I-140 Petition with a newly approved petition, even in a different preference category, in a pending employment based or family based adjustment case.

While the substitution of priority dates is a separate issue from the substitution of approvals in pending I-485 (Adjustment of Status) cases, it is important to note that under the provisions of the new American Competitiveness in the 21^st Century Act (AC 21), if a petition for Adjustment of Status has been filed, an employee who changes jobs;

• After receipt of approval to his I-140 employment based petition and
• 180 or more days have elapsed since he filed his I-485 Adjustment of Status petition and
• The new job is still in the same or similar occupational classification as the job for which the certification or approval was initially made;

cannot be refused approval because he has changed jobs. The employee would be allowed to substitute his Labor Certification approval and his I-140 immigrant petition approval to his new employer.

The applicant must submit a letter notifying the INS that he no longer intends to remain in the employment of the employer who sponsored his employment based petition. Also the INS will require a letter from the new employer verifying that the job exists and specifying the exact job title, salary and job descriptions that he will be required to perform. This is so that a determination can be made that the new job is within the same or similar occupational classification as the old job. (Before denying any application on the basis that the new job is not in the same or similar occupational classification, the INS adjudicators have been instructed to first consult with the INS headquarters.) The salary is essential to determine whether the applicant is admissible under the public charge provisions.

InfoLinks:

v Adjustment of Status

v Employment Based Immigration

v Family Based Immigration

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between The Law Offices of Cyrus S Nallaseth and the viewer.