Retaining Priority Date of I-140 Immigrant Visa Petition for Green Card Case

April 10th, 2014

The beneficiary of an approved Form I-140 immigrant visa petition in the EB-1, EB-2 or EB-3 employment-based category may retain the priority date of this petition for all subsequent I-140 petitions filed on his her behalf in the EB-1, EB-2 or EB-3 category.  This could significantly reduce the processing time to obtain legal permanent residency (the green card).  This applies even where the I-140 petition has been revoked after its approval.  The exception, where the revocation results in a loss of the priority date for this petition, is where there was fraud or misrepresentation.

The priority date is the beneficiary alien’s place in line for an immigrant visa number to apply for legal permanent residency.  It is either the date that the PERM labor certification application (Form ETA 9089) is filed with the Department of Labor, or if the PERM process is bypassed for those outstanding ability aliens, the date the Form I-140 immigrant visa petition is filed.  There are 140,000 employment-based visa numbers allocated each year equally to each country worldwide.  For those countries whose number of foreign nationals applying for a visa number exceeds the visas allotted to that country, such as India and China, a backlog results and these applicants are assigned a place in the line (the priority date).

Especially for those from India or China, or those in the EB-3 worldwide category, in which case immigrant visa numbers are not current and there is a long wait for them, retention of a priority date is a boon.  For example, let’s take an Indian software engineer with an I-140 approved on her behalf in the EB-3 category and with a priority date of September 1, 2009.  If she changes H-1B employers, leaving the employer that obtained the I-140 for her, she can retain the priority date from that petition and use it in her second PERM labor certification-based green card case at her subsequent employer.  If that second employer obtains a certified PERM application on her behalf in 2013, which has a priority date of 2013, then when filing its I-140 on her behalf it can instruct USCIS to accord its I-140 the priority date of the first 140 petition.  Even if the beneficiary’s first I-140 is revoked (except for fraud or misrepresentation), she can still retain the priority date.