LEGAL GUIDE
Written by attorney Andrew Wilson | Nov 12, 2010

Retention of Employment-Based Priority Dates

Earlier Priority Dates are Retained and are Transferrable Unless Revoked for Fraud or Misrepresentation

Under applicable CIS and field manual guidance, an individual may use the priority date from an approved EB-1, EB-2 or EB-3 I-140 petition for a subsequently approved EB-1, EB-2 or EB-3 petition as long as the earlier approved I-140 was not revoked for fraud or misrepresentation.

CIS updated the Adjudicators Field Manual (AFM) in 2005 and 2006 to clearly confirm that if a foreign national's I-140 is approved, the foreign national retains that priority date for future I-140 petitions unless the prior approved I-140 was revoked due to fraud or willful misrepresentation. Interim guidance on this issue was provided in an Interoffice Memorandum (HQPRD70/6.2.8) dated September 23, 2005 from William R. Yates, Associate Director, Operations. This interim guidance to revise Chapter 22.2(b)(5)(A) of the AFM reads:

(A) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority 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of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation.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 (see the section on successorship in interest).

CIS finalized its update and officially revised Chapter 22 to the AFM through an Interoffice Memorandum (HQPRD70/23.12) dated September 12, 2006 from Michael Aytes, Acting Associate Director, Domestic Operations. The Aytes memorandum revises the AFM, which is binding on adjudicators pursuant to AFM Section 3.4. This memorandum revised Chapter 22: Employment-based Petitions of the AFM to read:

(1) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority 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 (see the section on successorship in interest).

The current version of the applicable provision of the AFM at Chapter 22.2(d) now reads:

(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 (see the section on successor in interest).

Further guidance on the proper interpretation of retention of priority dates is provided by in the Foreign Affairs Manual at 9 FAM 42.53 N3.5 Subsequent Petition in Employment-based Classifications:

a. 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. In all cases, the beneficiary of multiple petitions is entitled to the earliest of the filing dates of the various petitions.

Additional resources provided by the author

http://www.uscis.gov/USCIS/New%20Structure/Laws%20and%20Regulations/Memoranda/*2009%20Memos%20By%20Month/Sep%202009/AFM%20AD07-26%20Signed.pdf http://www.state.gov/documents/organization/87863.pdf

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