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Visa Backlogs-Retaining Prior I-140 Priority Date

RETAINING A PRIORITY DATE FROM PRIOR EMPLOYMENT-BASED (EB) I-140 IMMIGRANT VISA PETITIONS

ELIGIBILITY TO RETAIN EARLIER I-140 PRIORITY DATE

With backlogs in the visa bulletin for many employment based preference categories, especially for those born in India, China, Philippines, and Mexico, employers and foreign nationals should consider whether visa applicants can rely on a previously filed green card petition to establish a priority date. If the previous I-140 was approved, the foreign nationals may retain and utilize its priority date for future petitions regardless of whether an adjustment of status petition was previously filed or denied. As such, an I-485-adjustment of status petition may be filed with a newly approved I-140 which will assume the priority date of the previously approved I-140 petition.

For foreign nationals in a backlogged employment based category, an earlier priority date may reduce and potentially eliminate any time that the foreign national must wait before an immigrant visa is available. If in the U.S., foreign nationals can apply for adjustment of status, advanced parole, and work authorization (EAD card) earlier than if forced to rely solely on the priority date of the current petition. For employers, this means that the quality workers they decided to sponsor for green cards may be able to start working and benefitting the employer sooner than anticipated.

 ELIGIBILITY TO RETAIN EARLIER I-140 PRIORITY DATE

To be eligible to retain an earlier priority date from a previously approved immigrant petition, the following conditions must be met:

  • The foreign national was the beneficiary of a previously approved immigrant visa petition (I-140) in the following employment based categories: EB-1, EB-2, or EB-3;
  • The foreign national must be currently the beneficiary of an employment based immigrant petition under either the EB-1, EB-2, or EB-3 preference categories; and
  • The previous employment based immigrant petition was not revoked due to fraud or misrepresentation

[8 C.F.R. 205.3 (e)]
[9 FAM 42.53 N3.6 ]
[AFM § 22.2 (d)(1)]

Please contact Attorney Scott Fanning, at Asonye & Associates - (312) 795-9110 with questions about employment-based priority dates, AC21 Portability, the Visa Bulletin and other issues concerning PERM Labor Certifications and I-140 Petitions.