According to the applicable rules and guidelines, an individual can retain the priority date from an approved I-140 petition for EB-1, EB-2, or EB-3 for a subsequently approved EB-1, EB-2, or EB-3 petition as long as the previously approved I-140 was not revoked for fraud or misrepresentation. For example, a foreign national will be able to upgrade from an EB-3/third preference category to the EB-2/second preference category while retaining the priority date for the EB-3 petition. This rule applies even if the foreign national changes the employer for the new EB-2 petition.
The applicable rule is found in the Adjudicators Field Manual (“AFM) at Chapter 22.2(d), which provides as follows:
“(1) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification.”
This provision allows a foreign national to “port” the earlier priority date from an EB3 case to a new EB2 case regardless of whether or not the worker stays with the same employer. The same rule applies when a foreign national makes a lateral move from one employer to another. For example, a foreign national who was sponsored by Employer A under the EB-3 category with an approved I-140 petition can port the same priority date to a subsequent EB-3 case sponsored by Employer B.
Needless to say, the ability to retain a priority date once the I-140 petition has been approved provides a substantial benefit to both the worker and the sponsoring employer. This rule allows the worker to obtain his/her green card sooner and for the same or new employer to freely change his/her position without having to start all over again.
We cannot emphasize enough about finding the right help for your immigration case. In a case like this, getting the wrong help can seriously damage your case and put your life on hold for years. Root Law Group has combined experience of over 30 years in immigration law. Call today for your free in-office consultation at 323-456-7600.
