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How Can I Keep My Priority Date of a Previously Approved Form I-140?

How Can I Keep My Priority Date of a Previously Approved Form I-140?

Priority dates are important for all green card applicants. Basically, one can imagine a "priority date" as an applicant's "place in line" or "place in the queue." The waiting line for some categories of employment-based green cards is very long. Thus, applicants generally want to avoid anything that will endanger their priority date.

For employment-based green card applicants, their priority date is one of two dates:

  • The date that a Form I-140 petition is filed by a sponsoring employer with the US Citizenship and Immigration Services ("USCIS") or
  • The date that the US Department of Labor “accepts for processing" a labor certification submitted for an I-140 employment position if a labor certification is required

Under older USCIS regulations, an applicant's priority date was lost if the employer revoked its I-140 or ceased business operations. And this was always a danger for green card applicants since processing times were and remain long. Under older regulations, the priority date was also lost if the labor certification required for the I-140 petition was invalidated or revoked.

However, under current regulations, an applicant's priority date remains the same as the date that the Form I-140 was filed even if other and additional I-140 petitions are filed on the applicant's behalf AS LONG AS the original employer did not withdraw its Form I-140 prior to the passage of 180 days (about six months). Once the 180-day mark is passed, then the applicant retains the priority date of that Form 1-140 filing. Now, a priority date can only be lost under two circumstances which are:

  • If the employer's I-140 is revoked by the USCIS because of fraud
  • If there is a determination by the USCIS that the I-140 approval was based on "material error"

With respect to labor certifications, under current regulations, the invalidation or revocation of a necessary labor certification will not affect the applicant's priority date. But, any new or subsequent employer must obtain a new labor certification if the classification requested requires a labor certification.

What About Filing Form I-485?

Filing a Form I-485 (Application For Change of Status) can also help in protecting a priority date. Under some circumstances, when changing employers, filing a Form I-485 means that the new employer may NOT need to file a new Form I-140. In other words, the previous I-140 can be used. This means that there is no danger that the priority date will be lost from the original I-140 petition filing date since no new I-140 petition is being filed. In these circumstances, the applicant and the new employer must complete and file an additional form: Form I-485J which is a confirmation of a legitimate job offer.

Contact Yekrangi & Associates Today

For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.

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