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  The answer is, both centers adhere to retaining the earlier priority date, unless the I-140 was revoked for fraud or willful misrepresentation.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the Priority Date is yours to carry forward to any employer you like--B,C,D,E--unless the employer A’s I- 140 was revoked for fraud or misrepresentation.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

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

Hi Rajiv,

I recently got my I-140 approved with Employer A. I wanted to change to employer B. I heard that I should wait for 6 months with the same employer A after my I140 is approved, so that when employer B filed my I-140 after labor approval, I can retain my priority date. Is that true?
Thanks in advance.

Venkat.

Are there any plans of implementing the 6 month rule soon (in couple of months)?
Can we immediately move to Employer B as soon as I-140 gets approved from Employer A?

No news.

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  Answers could be incomplete, incorrect or outdated.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

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.