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  The answer is, both centers adhere to retaining the earlier priority date, unless the I-140 was revoked for fraud or willful misrepresentation.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approval, the Priority Date is yours to carry forward to any employer you like--B,C,D,E--unless the employer A’s I- 140 was revoked for fraud or misrepresentation.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 wanted to share my experience on Applying my I-140 second time after I changed my employer in USA. Here are few things I thought to let you know as most of us on the same boat and there is always a doubt in this complex immigration system.

1. If you change your employer you need to apply PERM and I-140 again. Even if your GC category is not upgraded such as EB3 to EB2 etc.
2. If your earlier employer revokes your I-140 after you left your earlier organization, you will still be able to retain your Priority date and USCIS will port your Priority date based upon I-140 approval. Only exceptional case such as if your earlier employer is fraud or similar scenario, USCIS may not allow to retain first priority date.
3. If you are thinking to change your employer make sure your I-140 is once approved and next take a decision to change employer. Unless once I-140 is approved priority date will not retain. This step will help you to save at least few years to get your GC.
4. When you apply for your I-140 next time after changing your employer in USA, let your current lawyer know that your previous employer applied for your I-140 and it was approved, so that your current employer can attach earlier priority date detail with I-140 Application and request USCIS to retain earlier priority date.
5. Always always try to keep document every step you make such as in some cases your employer may not allow you to have I-140 details. It happened with me and I took a screen shot from USCIS Case Status site and kept it with me. Next time when I applied my I-140 I asked my lawyer to attach that screen shot with other documents. In this case, USCIS never asked any question as they can see that I-140 was approved for me and they allowed to retain my priority date.

Hope this information helps you. Good Luck with your GC processing.

Guys, do NOT plan on keeping the priority date. Pratim ji's experience is no longer the general rule. Until we get some clarification from the USCIS, in writing, just assume loss of PD upon revocation of I-140, and plan accordingly. I have no comments about the rest of the text above either. This is his opinion, not mine, so act accordingly.

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

I lost my PD since my prior employer withdrew my first I-140 approval and on my reccent I-140 approval petition they didnt port my original PD

Hi Sreekant,

Sorry to hear that. As you mentioned you lost you old PD, did you mean, you tried to port it while filing for I-140 through new employer and USCIS didn't accept it?

My Case
My previous employer A revoked by approved I140 (on the basis of I changing employers) PD Jan 2012. My new employer B filed my I140 and got it approved. However the PD on my new I140 shows Feb 2015. My attorney says that as per 8 C.F.R. Section 204.5(e), I can still use my earlier PD (Jan 2012). Do you guys know what does the law state and how does it apply? I have seen a few cases where it states that USCIS has now swing back to its old rule of wiping out the old PD.This makes me nervous.

I checked with my attorney and they have said that even if my previous employer revokes the approved I140, I am still entitled to use the old PD. An employer withdrawing a petition is not same as it being revoked.

I had my EB3 I140 approved (Bachelors + 2 years experience) and I485 pending. I changed my employer and the new employer applied for EB2 (Bachelors + 5 Years experience) and it was denied because they did not recognize my education as equivalent to a US Bachelor's degree.

What are my options if USCIS revokes my EB3 I-140 based on their new position? Can I apply for EB3 with the new employer and still be able to retain my priority date?

Thanks for your response!

A mistakenly/erroneously approved I-140 cannot confer a priority date. If USCIS revoked on those grounds, you cannot keep your PD.

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

Hello, I saw some online forums stating that if I-140 withdrawn you can retain your PD date. Is it true under current circumstances ?

What is difference between I-140 Withdraw vs I-140 Revoke? If both are not the same, in which cases employers to for withdraw.

Hello Rajiv,
I recently changed my employer and he invoked my approved I-140 case after that. But my I-485 is filed already and has been pending for more than 180 days when I left that company. I do not know the reasons given in that "revocation status" as I never received that notice. I just know only that it was revoced when I checked it online status today. I am trying to get a copy of this notice, but not sure what to do next.
Could you please advise me next steps. I would highly appreciate your quick response and advise on this.

Thanks,
Sai Ram

Hello Rajiv- My I-140 was first approved in 2011 with employer A. In 2012, I changed to employer B using my approved 140(employer A shared the approvaed 140. Notice). Employer B filed my labour and when filing my 140 they ported my PD.

Now, I am planning to change my job to company C. My current employer (B) is not ready to share 140 approval notice. I have the case number for my I140 petition.

My question is, can I transfer my h1B to my employer C and when they file for my 140 can I retain my priority date?

Usually, the case number should be acceptable without the actual notice. You should speak with the lawyers of the Company C. There are some variables that they should explore with you, Sudha.

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

Currently, I am employed for Employer A and my I-140 is in approved status. Planning to change my employment to Employer B. Soon after joining Employer B, Employer A
would revoke my I-140 and Employer B would start my Green Card processing after 6 months of joining.

1. When Employer B files for Green Card Petition, whether my earlier Priority Date (Employer A's PD) can be ported?
2. This question might be repetitive. However, in most of the forums does not have common answer to this question. Is there a rule / web reference, which has complete information about this topic?

1. Probably, yes. The proposed regulations as well as the most recent thinking of USCIS supports the carry forward of priority dates, even if I-140 is revoked.
2. No. But the new regs are discussed in my blog.

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

Hi Sir,
I have an approved I140 with company A, and I used this to transfer from company A to company B(and got 3 years extension)
Company B applied for my perm and it got denied today(after appealing for reconsideration). We are planning to file another perm application
My question is: my H1b expires in June 2016, can I still use my previously approved I140 to extension my H1B?
I'm pretty sure my previous company A did not revoke my I140, but my previous company has merged with another big pharma company and don't exist with the same name I used to apply my I140. Would that be an issue to use my approved I140 from company A?

Appreciate you advice on this.

Hi Sir,
I have an approved I140 with company A, and I used this to transfer from company A to company B(and got 3 years extension)
Company B applied for my perm and it got denied today(after appealing for reconsideration). We are planning to file another perm application
My question is: my H1b expires in June 2016, can I still use my previously approved I140 to extension my H1B?
I'm pretty sure my previous company A did not revoke my I140, but my previous company has merged with another big pharma company and don't exist with the same name I used to apply my I140. Would that be an issue to use my approved I140 from company A?

Appreciate your advice on this.

Prathi ji, you can use the same (unrevoked) I-140 for any employer and any number of times to get H-1 extensions.

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

Hello Rajiv S. Khanna,

I had few question on my immigration status if I change from Company A to B.

I got my I140 Approved from company A in October 2015 and got H1B extension till 2019 based on approve I140. I am planning to change my company from A to B based on my current extension.

1) Company A will revoke my I140 once I quit the company.
2) If I transfer my H1B to company B and get extension till 2019, is it safe for me to travel to India get stamping from company B.
3) My wife has her H4 EAD based on I140 approval, if I change from Company A to B what will happen to her H4 EAD, as my I140 was revoked by company A.
4) How soon should company B file my Perm.

Prasad