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 1^st, 2^nd or 3^rd 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 4^th or 5^th 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 2^nd 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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