Tuesday, August 18, 2009

FAQs on recapturing I-140 priority dates.

1. When can I recapture an earlier priority date?

If you have an approved I-140 in the employment-based 1st, 2nd or 3rd preference category, this can be transferred to a subsequent I-140 filed on your behalf in one of these categories.
Priority dates cannot be transferred to 4th or 5th EB preference petitions or to family-sponsored petitions.

2. What if my earlier employer withdraws the I-140?

Your priority date is transferable unless CIS revokes the I-140 petition due to fraud or misrepresentation.
Withdrawing the I-140 does not affect priority date recapture.

3. Does the new I-140 petition need to be filed by the same employer?

No.
The later I-140 can be filed by a different company and be for a different position.

4. Doesn’t the new job have to be in the “same or similar occupational classification” for portability?

No.
Recapturing priority dates does not require that the I-140s be for similar jobs. "Porting" usually refers to AC21 portability, nothing to do with priority dates. AC21 portability allows a person to change jobs during the permanent residence process in specific circumstances.

5. Can I transfer my earlier EB-3 priority date to my husband’s later EB-2 filing, so that we have an earlier EB-2 priority date?

No.
Priority dates can only be transferred from one I-140 to another when the I-140s are filed for the same beneficiary. They are not transferable between beneficiaries.

6. How do I ask CIS to use an earlier priority date?

Normally the lawyer filing the 2nd or later I-140 will include a letter asking CIS to use the earlier priority date.
The request needs to include a copy of the Earlier I-140 approval, or at least the receipt number. CIS needs some way to confirm that the earlier I-140 was for the same beneficiary.

7. What if the 2nd I-140 was already approved - how to I make sure CIS is using the earlier priority date?

You should not need to do anything. However I would contact CIS once the priority date is current to be sure that are using that PD
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PLEASE READ: I welcome all the comments to this posting. However, please do not ask specific questions about your particular case via the blog. I can only provide general information on this forum.

25 comments:

  1. thanks for the info. I have filed Eb2 petition and my eb2 I-140 has my eb3 I-140s priority date.

    Do i need to do anything to upgrade my 485 which was filed under Eb3 or since the eb2 I-140 has the old PD i am all set?

    ReplyDelete
  2. My Question is:
    How do we know that CIS has acted upon request to use an earlier priority date? Do they send a confirmation letter ?

    ReplyDelete
  3. "How do we know that CIS has acted upon request to use an earlier priority date?" The old priority date should be listed on the new I-140 approval notice.

    ReplyDelete
  4. Reply to: "Do i need to do anything to upgrade my 485 which was filed under Eb3 or since the eb2 I-140 has the old PD i am all set?"
    You should be fine, however I would contact CIS once the priority date is current to be sure that are using that PD

    ReplyDelete
  5. The subsequent employer filing for a new I140 to utilize recapturing mentioned in the above FAQ's still have to file a labor isn't it? The procedure is new different than a filing a new GC except for the benefit of the priority date. Isn't this the case? If its true, you may want to add a FAQ coz this is confusing for most folks.

    ReplyDelete
  6. Rely to "The subsequunt employer filing for a new I140 to utilize recapturing mentioned in the above FAQ's still have to file a labor isn't it?"

    Not necessarily. Not all I-140 categories require an approved labor cert. If the 2nd I-140 is an EB-1, or a National Interest Waiver, no LC is needed.

    ReplyDelete
  7. I have heard in many cases that employers don't share the I-140 copies or even the receipt number. Is there any way to find the I-140 details without seeking help from employer?

    ReplyDelete
  8. A sub-question to question #2:

    Some people say that I-140 should not be withdrawn for 6 months to use AC21. Is this true for porting the priority date too? For example say, an employer withdraws I-140 after 2 weeks from its approval. Can the beneficiary port the priority date using the withdrawn I-140?

    ReplyDelete
  9. In response to the last 2 questions -
    1. you need some way to identify which I-140 was filed earlier. Most people will have a copy of the I-140 approval or at least receipt in their paperwork, perhaps from a H-1B extension.

    2. As I mentioned, unless the I-140 is revoked due to fraud, you can recapture the earlier priority date. There is no 6-month rule.

    ReplyDelete
  10. Hello,
    I have 2 Priority Dates
    1. March 24 2005 - No AOS filed, I 140 was filed for future employment
    2. July 23 2007 - AOS Filed in July 2007 when the dates were current- Currently working for this company.

    Can I port March 2005 PD to the current employment PD, have all the associated documentation , I 797 for Approval Notice etc
    Please advice


    Can I port

    ReplyDelete
  11. I had got my EB3 priotiry date recaptured in EB2 I140 filed latter .After doing this ,I asked my lawyer to interfile the case (ask them write a letter to USCIS to convert my earlier filed I485 application in EB3 to EB2) .

    My attorney said that ,this can only be done when priority date is current.But some people in similar conditon ,told me that this interfile application can be written, even if the priority date is not current as there is no written proedure for it specified by USCIS .And it is better to send that application asap ,as it might help my green card processing time ,since after getting that interfile application ,USCIS might go ahead and do the other procedures on it like name check and other check etc .My priority date is in EB2 India and 2 months away from this month dates announced by USCIS.

    I have two questions
    1)can the interfile application for I485 ,as speified above ,be send to USCIS ,even if the priority date is not current .

    2)can it be send twice that is now when priotiry date is not current and latter when priority date becomes current ?

    Best regards and thanks for helping !

    ReplyDelete
  12. Q. "How do we know that CIS has acted upon request to use an earlier priority date?"
    A. The old priority date should be listed on the new I-140 approval notice.
    Q. Thanks for your response. In my case, the request to use an earlier priority date was submitted after the new I-140 approval notice. I-485 application filed during July 2007 fiasco, and then got the second new I-140 approval based on an earlier separate Labor. Thanks.

    ReplyDelete
  13. Reply to:
    Reply to "I have two questions: 1)can the interfile application for I485 ,as speified above ,be send to USCIS ,even if the priority date is not current.

    2)can it be send twice that is now when priotity date is not current and latter when priority date becomes current?"


    Sure, you can notify CIS as many times as you like about using the old priority date. It might not help, but it probably won't do any harm.

    ReplyDelete
  14. Your blog is nice.Thanks for opening this blog. My blog is about Online Newspaper Site

    ReplyDelete
  15. Here is the sequences of Events (BE + MBA in Computer systems):
    Labor Filed Date: Oct 3rd 2003
    Labor Approved Date: Sept 15th 2006

    EB2 140 Applied: Oct 30th 2006
    485 Filed (self & wife): July 2nd 2007, Receipt Date: Sept 9th 2007.
    485 Finger Print for both(biometrics): Oct 4th 2007

    EB2 140 Query (RFE): Dec 5th 2007
    "The labor certification accompanying this petition specifies that a bachelor's degree and 2 yrs of experience is an acceptable combination
    for the position offered. Therefore, the job offer portion of the labor certification does not demonstrate that the job requires a professional holding an advanced degree or the equivalent.
    Consiquently, in accordance with the regulation cited above, the petition cannot be approved.(Title 8, Code of Federal Regualtions part 103.2(b)(8)."

    In between these dates, my H1 renewal (for 8th year) that was pending since sept 2007 was put in Premium.
    EB3 140 Applied: Jan 10th 2008
    In between this dates... EAD & Advance Parole (I-131) for my wife was applied and approved.
    EB3 140 Approved: Mar 17th 2009.
    Can you please advice me whether to go for another labor for EB2 and port the priority date or wait till my EB3 clears up?
    There was soft update on my I-485 after my EB3 140 was approved.
    -Anant C

    ReplyDelete
  16. Anant and others - please see the comment at the end of my blog posting about not asking case-specific questions. I'd be happy to answer these in a private consultation.

    ReplyDelete
  17. Sorry for not readying the comment at the end of blog-posting..

    ReplyDelete
  18. Hello. I have seen other comments that mentionthis but I do not see this exact question. If you already answer it, I am sorry. I need information from the labor certificate that my old employer did to answer an RFE on my I485 but my employer won't give me the information. So what I want to know is is the labor cert and I140 belong just to the employer that sent them in? Thank you.

    ReplyDelete
  19. Anonymous from 9/1 - the labor cert and I-140 are filed by the employer, and usually the employer pays for both, so they are company filings. More recent PERM cases MUST be paid for by the company

    ReplyDelete
  20. If an individual has 2 applications (EB2 and EB3) and the EB2 priority date is older than that of EB3. However, the I-485 application was based on the EB3 labor.

    Will interfiling the EB2 I-140 automatically upgrade BOTH the category and priority date to EB2 and the earlier EB2 priority date?

    Or is it an either/or proposition when it comes to the USCIS?

    Thank you.

    ReplyDelete
  21. xlr8r - you can only use a priority date with an approved I-140. In your case, I would notify CIS when filing the EB-2 I-140 that you want to link that I-140 to the pending 485 that is now based on an EB-3 I-140.

    ReplyDelete
  22. Question:
    Can i file an AOS application if my spouse's application if my spouse AOS application is pending currently? Can a couple have two AOS applications pending at the same time one for each spouse with other as the beneficiary?

    ReplyDelete
  23. Yes, having 2 485s pending is common. Once CIS approved one, they will deny the other one because it is redundant.

    ReplyDelete
  24. Hi Elaine,

    While porting EB3 priority date to EB2 at I-140 stage,employer said EB3 will be cancelled.Is this true and can't we keep EB3 I-140 alive while we apply for porting.

    Thanks,
    Ravi

    ReplyDelete
  25. Dear Elaine,
    You have mentioned "No. The later I-140 can be filed by a different company and be for a different position." I wish to know how uncertain the approval is if the same employer files an EB2 when a person has sufficient experience to pursue the EB2 criteria.What could be consequences and is it possible?

    ReplyDelete