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I-140 porting category and priority date both ?

New York, NY |

Hi All,
I have an approved I-140 with my previous employer. And my new employer is starting my perm process again.
I am aware of the fact that i would be able to use my PD from the approved I-140 with the new application.
But, my current employer will be filing my perm under EB3 instead of EB2. So even if i use the EB2 PD, I will still be pushed back in the waiting queue as i will be then unde EB3 queue.
When i mentioned this to the laywer, he said when filing for my new I-140, I would not only be able to use the PD from it but also will be able to use the category in which it was filed with. So that means i would still be able to file under EB2 instead of EB3 category.
I wanted to check with the experts here, if this is a true statement.

Attorney Answers 5


  1. It appears that you are looking for a second opinion. Please seek a private consultation with an experienced immigration attorney in NYC to accomplish it.

    NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.


  2. Impossible to give a meaningful answer without knowing all the facts, I.e. examining the new PERM position; comparing to the old; and etc. Spend a fistful of dollars to sit down with a local immigration lawyer to examine in detail and tell you.

    Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


  3. PD retention is generally do-able unless the first I-140 was withdrawn. The "upgrade" that you refer to in the second part of your question is possible sometimes but very case-specific. An attorney would have to closely review the PERM job requirements, among other aspects, to determine whether this it is a possibility under your circumstances and advise your employer accordingly.

    Serving Clients in All 50 States -- Khurgel Immigration Law Firm -- Attorney Khurgel is a Former USCIS and Department of State Embassy Officer. Address: 4199 Campus Drive, Suite 550 Irvine, CA 92612. Email: info@khurgel.com Office: (949) 509-6515 Direct: (949) 535-6331 Fax: (949) 509-6599. Kindly note that this posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Remember, this site is akin to an internet blog. Do not rely on information here to make important decisions in your life. Make an appointment to meet with a licensed attorney in his or her office (or via Skype or phone) to obtain competent personal and professional guidance.


  4. I agree with my colleagues, from the description it is difficult to understand your current strategy. If you could port, it is hard to understand why you would do a new PERM.

    The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.


  5. That statement is incorrect. The original priority date may be retained. the visa category depends upon the requirements of the position.

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