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Retention of Priority Dates for Employment Based Petitions
09/19/2014

Beneficiaries of approved I-140 petitions for the first, second and third categories may retain the priority dates of their approved petitions for any subsequently filed first, second and third category employment based petition. 

The pertinent regulation on this matter is 8 CFR 204.5(e) which states that:

Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

The Foreign Affairs Manual (FAM) clarifies that only petitions revoked based on fraud or misrepresentation are not conferred with a priority date that can be retained. 9 FAM 42.53 N3.5 states in pertinent part that:

Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, 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. 

This rule on retention of priority dates is particularly useful for beneficiaries of approved I-140 petitions in retrogressed categories, who, through the passage of time, no longer have an open job offer from their original I-140 petitioner when their priority dates become current but subsequently find a new I-140 sponsor.  

For example, Ms. A, a nurse from the Philippines has an approved EB3 Schedule A I-140 petition with a March 31, 2011 priority date which is now current under the September 2014 visa bulletin, which shows a cutoff date of April 1, 2011 for EB3 beneficiaries from the Philippines. If Ms. A’s I-140 sponsor no longer has an open job offer for her since many years have passed since they filed the petition for Ms. A but Ms. A finds a new I-140 sponsor, Ms. A may retain her March 31, 2014 for the subsequent I-140 petition filed by the new sponsor. Therefore, Ms. A’s priority date would still be current and she would only need to wait for the approval of her new I-140 petition in order to apply for her green card. The rule on retention of priority dates would eliminate the long waiting time entailed in filing the I-140 for the first time.

For those with previously approved I-140 petitions who have lost their job offers from their original petitioners but have found new I-140 sponsors, the waiting time for the priority date of your new I-140 petition to become current can be significantly reduced by applying the rule on retention of priority dates.