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 immigration.com, 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  The answer is, both centers adhere to retaining the earlier priority date, unless the I-140 was revoked for fraud or willful misrepresentation.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approval, the Priority Date is yours to carry forward to any employer you like--B,C,D,E--unless the employer A’s I- 140 was revoked for fraud or misrepresentation.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.

Comments

I have an approved I-140 form my previous an Employer A. I have the copy of I-140 with me.

Few months ago, I accepted a full-time offer with Employer B. This is the same employer with whom I was working as consultant for many years under Employer A's payroll.

Unfortunately, my situation has changed and I will have to move-on again. Because of that reason, even through my Employer B agreed to file GC immediately, I have not started the process yet (been about 4 months now). Let's say in about another 6 months, I switch my H1B to Employer C, would I still be able to use my Employer A's I-140 priority date with Employer C?

OR

Can my Employer A revoke I-140 and may I lose my priority date?

Priority date belongs to the employee. It has nothing to do with how many employers you change.

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  Answers could be incomplete, incorrect or outdated.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

From my current employer (A) I got my EB3 I140 approved and I have pending I485 application. With same employer (A) I got new I140 approved in EB2 category so that my application (485) can go under EB2 category instead or EB3. Questions

(1) Do we need to make any updates to USCIS to inform that new EB2 I140 is approved and move pending I485 application under Eb2 category ?

(2) My employer (A) wants to revoke old EB3 I140, so if he does that then do I need to file I485 again ? Or Old I485 application will get updated with new I140 (EB2) ?

Rajul, you should consult a lawyer for the appropriate course of action. As a general rule, the priority date port-over is automatic, but change of I-485 over to a new I-140 requires action.

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  Answers could be incomplete, incorrect or outdated.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

Can you please clarify whether I can retain my priority date, even when my I-140 is revoked?

My scenario,
1) I-140 approved with employer A
2) Planned to move to employer B. Got 3 year extension with employer B
3) Employer A revoked the I-140.

Thanks for your reply sir.

Current thinking of the USCIS is that employer-initiated revocation of I-140 does NOT affect your priority date.

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

Hello sir ,

I will be travelling to usa on h4 visa with my husband ho is on h1 b and i140 approved .if he changes his present employer to a new company .will my h4 ead get cancelled.i am too confused ..please guide .thanks

As long as he is maintaining status, changing jobs should not affect your H-4 EAD. Do note, the I-140 must not be revoked.

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

Hi Sir,
I am in A company on H1's 7th year i140 approved in 2012. H1 is valid till May 2018. I know if I transfer H1 to B, I will get the transfer and extension till 2018 based on previous approved i140 from company A. In next 6 months if A revoke I140, can I still able to transfer to C in 2017 I.e. before my current H1 validity? I know I can not get extension beyond may 2018 but till 2018 can I able to switch to C or D if I140 withdrawed? Thanks for answering.

Ramesh ji, join our next free community conference call. I will explain.

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

Hello Rajiv ji ,

If a person is in his/her 6th year of H1b and H1b is under extension for last 6 months of 6th year of H1B , and i140 is just now approved. Can he/she transfer H1b with employer B anf get 3 year extension ? Would it affect if employer A who has filed I140 and revokes it after H1B transfer is approved for next 3 years with employer B ? I know that employer B will have to file PERM and I140 again.

Thank you,
Dhara

I have an Approved I-140 EB-3 from my previous Employer (A), now changes to (B) got new employer I-140 EB-2.
If i go to Employer-C and Employer B revoked I-140 (EB2) then my Employer's (A) I-140 will still valid as it was never revoked which i am very sure?
I am concern about the porting, while porting I-140 from A to B, Employer's A 140 should not forfit/void?

Hi Rajiv,

I worked for Company A and got my EB-2 I-140 approved. Then I switched to a client I was working for Company B and got additional 3 years H-1B extension using the approved I-140. Now the EB-3 I-140 filed by Company B is denied and my H-1B expires in 2 months. So can Company B apply to get my H-1B extended by 3 more years using the approved original ( not withdrawn ) I-140 ? Can this be done multiple times ? If the answer is YES, I plan to move back to Company A when my PD gets current and then apply to get my Green Card.

I would really appreciate your advice, specially since I am running out of time. Thanks in advance.

Arvind

You can apply for H-1 extensions from B based upon I-140 approval of A. No problem.

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

Can you please clarify my below questions.
1. I-140 Approved last week with employer A if I shift to employer B can I carry forward my priority date?
Please suggest me won this matter

Note: I-140 Approval validity is less than a week.

Thanks,
Rajesh.

Rajesh ji, wait till 17 January. Then move. You will be well protected, especially if your I-140 remains unrevoked for 180 days from the date of its approval.

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

HI,

I have an approved I-140 (EB2, current employer) with 2013 PD and just received my old I-140 (EB3, previous employer) through FIOA request which has 2008 Nov PD. Both I-140 has same A number. My current employer's lawyer said she will send a letter to USCIS to port the PD from old I-140 (EB3) to current I-140 (EB2) and I can file 485 after getting an updated I-140 with new PD.

Can you please recommend any other options, like can I file 485 directly by sending in a letter to port along with 485 application, or should I wait for USCIS to respond to the porting letter first and then file 485?

Please advise.

Sir,

This is my situation.

1) I have my perm approved and i-140 is not filed.

I changed the employer, can I retain the priority date? Kindly reply.

Thanks,
Girish.

There can be no priority date without approval of an I-140.

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

Hi, good day!I just received just a while ago that my I-140 was denied by the USCIS..now my question is can I retain my priority date which is dec 2015 once my employer re-file my petition?

If the I-140 is approved upon refiling, you will keep your priority date.

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