Labor Substitution + AC21 > Priority Date?

[santa4u]

Guys,

One of my friends wanted to know this,
For Labor Substition scenario with Company A - if you invoke AC21 after 180 days and then join company B permanent offer --- would you still retain the Priority Date of the substituted labor?

If Company A revokes I-140 - would you still retain the Priority Date....

I heard that in such a case the PD gets reset to I-140 application date (from the labor application date), is it true?

 

[Cheekoo]

Guys,

One of my friends wanted to know this,
For Labor Substition scenario with Company A - if you invoke AC21 after 180 days and then join company B permanent offer --- would you still retain the Priority Date of the substituted labor?

If Company A revokes I-140 - would you still retain the Priority Date....

I heard that in such a case the PD gets reset to I-140 application date (from the labor application date), is it true?

You retain the original PD

 

[GCIsTortoise]

I think it doesn't matter whether the labor is sub or original. The PD is retained. The issue is that if the labor is substituted to another employee in company A, there is a risk the employee in company A gets GC first. No idea how USCIS handle this case since both are legal but one of them must be denied in the shadow of one labor certificate. This is really grey area which no one has right anwser yet (even USCIS).

You retain the original PD

 

[knowDOL]

If the employer revokes the I-140 you retain PD but if the USCIs revokes the I-140 because of fraud or erroeneous LC or duplicate usage of LC to multiple people then you do not retain PD I think.

 

[indian_gc_ocean]

This is what Rajiv Khanna says (it should be the same for substituted labor also) at
http://www.immigration.com/faq/prioretro.html

Q29 1. Can you please explain if priority dates can be transferred?

2. What If I-140 Is Denied?

A29 1. Sure. Here is the law:
CHANGING EMPLOYER BEFORE I-140 APPROVAL
If a person changes employers before obtaining I-140 approval, they can carry NOTHING forward to the next employer. They have to start their labor certification all over again with the new employer. There are some very limited exceptions to this rule (for example, in general, a change in employers requires a new application for certification by the new employer unless the same job opportunity and the same area of intended employment are preserved. International Contractors, Inc., and Technical Programming Services, Inc., 89-INA-278 (June 13, 1990). A change in employers does not necessitate a reapplication for certification where the alien is working in the exact same position, performing the same duties, and in the same area of intended employment for the same salary or wage). Neverthless, you can discuss your case specifically with your own lawyers. If you wish to get a second opinion from us, we expect a paid consultation.

2. That situation is legally the same as changing employers before I-140 employer.

CHANGING EMPLOYER AFTER I-140 APPROVAL
If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her. Under very limited circumstances (such as fraud) INS may revoke the I-140 thus causing a loss of priority date.

If such a person changes employers, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.

We recommend that an applicant keep at least a copy of the I-140 approval notice.

[Index] [Compiled by Law Offices of Rajiv S Khanna]

(Posted on 20 September 2005 )