Priority Dates can be carried forward even if old I-140 is revoked

6 May 2015: We are noticing a VERY disturbing trend: USCIS seems to have reverted back to the position (or are in the process of reverting back) that priority date will be lost if the I-140 is revoked, even if revoked by the employer, not USCIS.

Hello, everyone.  This is Rajiv S. Khanna for, the Law Offices of Rajiv S. Khanna, P.C.


I am very pleased to report this morning that I saw a news report from USCIS Nebraska Service Center teleconference on April  12, 2012, that clarified you can carry forward the Priority Date from one I-140 approval to another 1-140 approval for another employer, even if the old employer revokes the I-140.  USCIS has flip-flopped on this issue several times.


Let me first bring you to the news.  Right here it says.  If you look at the question number two.  The answer is, both centers adhere to retaining the earlier priority date, unless the I-140 was revoked for fraud or willful misrepresentation.  So the idea here is this:  even if you go from Employer A to Employer B, and Employer A revokes the I-140 approval, the Priority Date is yours to carry forward to any employer you like--B,C,D,E--unless the employer A’s I- 140 was revoked for fraud or misrepresentation.


The history of this interpretation is strange.  A few years ago, this was the position.  USCIS always said you can carry the Priority Date forward.  A couple of years ago, they started saying, “No, you cannot.”  We had several cases in which they raised this issue, so anybody who has had this issue decided against them can actually go back and file a motion to reopen/reconsider.  I advise you to think about this very carefully.  You could actually go back and ask USCIS for the Priority Date to be carried forward if they had earlier denied it.  There’s  a whole lot of people who went through this.  File a motion to reconsider.  Then USCIS started saying, “Well, you cannot do it.”  


Now they are back to their old, very good interpretation, which is in line with Congressional intention for AC-21, where Congress wanted to create room for people to leave their jobs and move on to other jobs because Green Cards were taking so long.  So Congress said, “We’ll put in AC-21.”  That will make it easier for employees to change jobs without losing their Green Card benefits.


This is excellent news, folks.  Once again, I am summarizing it for you.  You can carry your Priority Date forward, even if the old I-140 is revoked, unless the I-140 is revoked for some fraud or some willful misinterpretation.


One more thing I wanted to add.  This is not good for H-1.  Don’t think that if the I-140 is revoked, you can still use it for H-1 extensions.  You cannot.  If you want H-1 extensions beyond six years, you’ve got to have something else going.  You cannot rely on the revoked I-140.


That’s all I have to say on this issue.  I will speak with you folks soon.


Thank you for listening.


My husband got his labor approved in 2009 and could not apply for I 140 at that time. Can we forward our dates in that case or our i 140 has to be approved to move our dates?

A priority date cannot be used until the I-140 is approved. If no I-140 was filed for the 2009 application, I'm not sure how you can use that.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Hi Rajiv,

EAD under H1-B based Green card was approved from last employer which was valid till 2008 but 485 was denied/revoked because I left the company and moved back to home country.
I re-entered to USA in 2018 with new employer in H1-B, now I am filing the Green card and would like to maintain the old priority date. Job profile for both the company is same.

1. Do I have any option to maintain the old priority date, then how? Is it a risk?
2. In case if it is possible, do I need to again file the labor and I-140 or I can directly file 485 based on the last priority date which is current now.

This question is difficult to answer because the situation before January 17 was quite unclear. The regulations said that you could not carry forward the priority date if your I 140 was revoked, but the USCIS was inconsistent. So, this is an issue only your lawyers can help you decide.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Hi Sir,

I have an approved I-140 from my previous employer with a PD in 2004. I left the company in 2007. Can I use that old PD for my new I-140 filing now in 2017 ? Will it be ported, irrespective of whether my old employer withdrew it or not?


I have a blog posting on the flip-flop the USCIS has done several times on whether or not a priority date of a withdrawn case can be ported. The bottom line is, you should try. You may be able to port that priority date. Of course, after 17th of January 2017, the regulations are a lot more succinct and clear. I also have another blog entry explaining those regulations.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Dear Sir,

My company filled my I-140 in 2009 which later got approved status under EB3. In 2011 I requested my company to move my application to EB2. My lawyer instead of filling a separate EB2 application sent one amendment which revoked my 2009 filling. After this we had to start fresh application under EB2 which again got approval. Both GC applications were filled by the same employer and I'm still working for the same employer as we speak.

My question is, can I claim my previous priority date of EB3 - 2009 under my EB2 application?

Please suggest.

Without getting into complicated details of the evolution and the changes in regulations, I would suggest that it is worth trying to recapture the priority date from the old case. It may work.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.