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Posted by
jramchandani
on 06 Nov 2008 |
| Q. |
Using Priority Date from an Old Labor/I-140
Issue - I have approved EB2 labor (PD - October 2007) and I-140 (approved July 2008). I am thinking of accepting a job offer (with similar job profile) with higher salary from another company within the same city. If I accept that position and apply for EB2 again -
Question - will I be able to use my current PD (Oct 2007)and what issues/challenges should I expect? I have copies of my labor and I-140 applications. I will apperciate if you can share your experience in deadling with this issue.
My background - I have a masters degree from the US and five years of work experience.
User's Location:
Fort Lauderdale, Florida, United States of America
Category:
Employment-based Green Card
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| Posted by
Andrew M. Wilson
on 06 Nov 2008 |
| A. |
That is an excellent question.
Under 8 CFR section 204.5(e), if an EB-1, EB-2 or EB-3 I-140 is filed and approved, the priority date of the approved petition is preserved for any subsequently filed EB-1, EB-2 or EB-3 I-140 petition.
Therefore, if a foreign national is the beneficiary of an approved employment-based immigrant visa petition, the priority of that earlier petition may be applied to all subsequently-filed employment-based petitions.
For example (from Adjudicators Field Manual 22.2(d):
Company A files a labor certification request on behalf of an alien ("Joe") as a janitor on January 10, 2003. The DOL issues the certification on March 20, 2003. Company A later files, and USCIS approves, a relating I-140 visa petition under the EB-3 category. On July 15, 2003, Joe files a second I-140 visa petition in his own behalf as a rocket scientist under the EB-1 category, which USCIS approves. Joe is entitled to use the January 10, 2003, priority date to apply for adjustment under either the EB- 1 or the EB-3 classification.
If prior I-140 was approved, you should be able to use that priroity date for subsequently filed I-140 petitions. You will need to show a copy of the approved I-140 in order to use that earlier priority date with any future I-485 or IVP filings. Other than that, the issue is pretty clear and you should not have a real problem using the earlier priority date.
We have experience with this issue and PERM/I-140/485 matters so feel free to contact me anytime for assistance.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com
716-854-7525 |
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Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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| Posted by
jramchandani
on 07 Nov 2008 |
| Q. |
I would like to confirm whether I will be able to port my PD with Company A (that also has an associated approved I-140) for 1-140 and I-485 with Company B? I have received an opinion which suggests that porting is only possible if it is with the same employer.
Thank you. |
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| Posted by
Andrew M. Wilson
on 10 Nov 2008 |
| A. |
There is no requirement that the new matter be with the same company in order to use the earlier priority date.
Under the law, and as outlined in the Adjudicator's Field Manual, earlier piority date may be used for subsequent filings as long as earlier I-140 was approved. (Approval of only labor certification is not enough)
In addition to the Adjudicator's Field Manual, guidance can be found within the Foreign Affairs Manual (FAM) at section 42.53 Note 3.6 "Subsequent petition in Employment-based Classification":
"Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresntation, a priority date accorded by approval of an employment-based first, second or third preference petition is retained by the beneficiary for any other first, second or third preference petition approved subsequently for the same beneficiary. In all cases, the beneficiary is entitled to the earliest of the filing dates of the various petitions."
Further guidance on this issue is found from an AILA/Texas Service Center liaison meeting:
Questions & Answers
May 7, 2007 AILA / TSC Liaison Meeting AILA Doc. No. 07062563.
Q. Alien, born in India, has approved I-140 (EB-2) with November 29, 2005 priority date. The same alien now has an approved EB-3 labor certification with an earlier December 6, 2004 priority date. The attorney would like to re-capture the earlier EB-3 priority date and concurrently file both I-140 and I-485 since the December 6, 2004 (EB3) priority date would be current for India EB-2. Is this possible and what is the best way to flag the filing to avoid rejection in the mailroom?
A. When filing the new I-140, flag the request to “Re-capture” the earlier priority date by attaching a bright colored cover sheet with large type stating “Priority Date Current with Re-Capture of Earlier Priority Date” and provide an explanation. The earlier priority date on the approved I-140 should be highlighted. The attorney cover letter should also state the Recapture request and explanation.
I have not seen anything under the law or any guidance memos that require that the new green card filing be with the same company. We have handled matters where the subsequent green card paperwork was through a totally new employer.
Please let me know if you need any assistance.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com |
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Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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