How do I transfer or retain an I-140 priority date?

Perhaps the most crucial “date” in the employment-based immigration process is theprioritydate. As we know, employment-based immigration visasare subject to annualquotas or numerical limitations, which implies a limited number of visas in each preferencecategory. Thesecategoriesare divided into several classes, and thehigherpriorityones tend to have more visas available. Often, thesecategorieshave delays, which means that an individual must establish his or her position on the waiting list beforethe government approvespermanentresidency.

Theprioritydate determines anapplicant‘s place in the visa queue, the right to file forpermanentresidence, as well as the government’s ability to approve these residence applications. Generally, those with dates furtherin the past areconsidered “front of the line”, while those with recent datesare at the back of the line and have to wait.

Theprioritydate determines anapplicant‘s position in the visa queue, the right to file forpermanentresidence and the government’s ability to approve such applications. Generally, those with olderdates areconsidered “at the front of the queue”, while those with more recent datesare at the back and must wait.

Normally, theprioritydate is obtainedwhentheemployer submits the PERM ETA 9089LaborCertification. This date is considered theprioritydate of the case. After PERM approval, the company has six months (189 days) to file an I-140 beforeit expires. Once the I-140 is approved, theprioritydateremainsindefinitely, or at least until it is updated and the I-485 Application forPermanentResidence can be filed.

Assume Abhishek works forCompanyA and submits theLaborCertification on October 29, 2020. This date is yourprioritydate. After PERM approval,CompanyA files the I-140, and once approved, Abhishek’sprioritydate isheldindefinitely. If Abhishek switches toCompanyB afterCompanyA’s I-140 approval,CompanyB must file its ownLaborCertification and I-140. CompanyB’sprioritydate will be the date of filing itsLaborCertification, notCompanyA’s originaldate.

Our office maintains that once the I-140 is approved, the associatedprioritydate ispermanentlyassigned to the immigrant. Pursuantto 8 Code of Federal Regulations (CFR) section 204.5(e), the first I-140 approved on behalf of analienunder the EB-1, EB-2, or EB-3categoriesestablishes theprioritydate for thatalienon anysubsequentlyfiled I-140,regardlessof the specific classification under EB-1, EB-2, or EB-3. In the event that thealienis the beneficiary of multiple approved I-140s, he or she will begrantedtheearliestprioritydate among them.

Now, let’s consider that after Abhishek’s I-140 approval withCompanyA, he decides to move toCompanyB. It isimportantto note that, in order to supportPermanentResidency, Abhishek’s currentemployer may require its own I-140 approval. Therefore,CompanyB intends to file its ownLaborCertification and obtain thecorresponding I-140 approval.

OnceCompanyB files its ownLaborCertification, let’s assume it does so on January 15, 2022. Consequently, theprioritydate associated withCompanyB’s case is January 15, 2022, not October 29, 2022 (according toCompanyA). Although there areimportantreasons forCompanyB’s linkage until January 2022, for thepurposesof this article, it is notrelevant toelaborate on this.

Now, by filing its own I-140 with theLaborCertification obtained,CompanyB seeks to avoid losing Abhishek’s position in thePermanentResidency queue. To accomplishthis, by filingCompanyB’s I-140, theywish totransferor “claw back” theearliestavailableprioritydate for Abhishek (October 2020) fromCompanyA.

How is thisprioritydatetransferor retrieval carried out? It’s simple:

WhenCompanyB is preparing to file its I-140, assumingCompanyB’sLaborCertification is approved and current,CompanyB must take two actions:

1. In its I-140 filing,CompanyB must include a copy or evidence of theearliestavailableprioritydate for Abhishek. This is generally accomplishedbyfiling a copy ofCompanyA’s I-140 approval, which clearly indicates theprioritydate. In the event thatCompanyA refuses toprovidethisdocument or if Abhishek does not have it available, there are severalwaysto obtain proof of I-140 approval. Generally speaking, filing a Freedom ofInformationAct (FOIA) request will result in obtaining allnecessary documentation to demonstrate theearliestavailableprioritydate.
2. On the currentForm I-140 (with an edit date of 5/31/2022),Company B should check the “Yes” option in Part 4,Item 8, which asks, “Have anyimmigrant visa petitions ever been filedby or on behalf of this person?”. As a best practice, the CompyearCompany B could include a short paragraph in a cover letter notifying the company of its intention toanUSCIS about his or her application for porttion of priority date portability.orility.