Can I use my old Priority Date?

G

Gogol75

Registered Users (C)
Can somebody answer my question? I have had different answers from the attorneys and haven't had a conclusive answer:

1. I worked for Company A from 1999 to 2001. They started my GC process. My Labor and I-140 were both approved (Case EB3: PD: June 2000). I left the company in 2001 without filing I-485. In 2003, Company A withdrew my I-140 (I guess they used my labor for someone else).

2. I joined Company B in 2001, and they filed my labor (TR, EB3) in December 2001. That application is stuck in BEC.

3. Company B is now filing PERM for me as a new application. The attorney says that I "might" be able to recapture my earlier PD of June 2000 because my I-140 was approved. However as you can see above, that I-140 was withdrawn by my previous employer.

Ques 1: The attorney will file my PERM as a new application (and not convert my pending BEC case). His reasoning is that conversion does not apply in my case as I can reuse my older PD of June 2000. Is this correct?

Ques 2: If I cannot reuse my older PD, then shouldn't we try to convert my pending BEC case into PERM. The pending BEC case has the PD of December 2001.

Please help.

Thanks
 
Gogol75 said:
Can somebody answer my question? I have had different answers from the attorneys and haven't had a conclusive answer:

1. I worked for Company A from 1999 to 2001. They started my GC process. My Labor and I-140 were both approved (Case EB3: PD: June 2000). I left the company in 2001 without filing I-485. In 2003, Company A withdrew my I-140 (I guess they used my labor for someone else).

2. I joined Company B in 2001, and they filed my labor (TR, EB3) in December 2001. That application is stuck in BEC.

3. Company B is now filing PERM for me as a new application. The attorney says that I "might" be able to recapture my earlier PD of June 2000 because my I-140 was approved. However as you can see above, that I-140 was withdrawn by my previous employer.

Ques 1: The attorney will file my PERM as a new application (and not convert my pending BEC case). His reasoning is that conversion does not apply in my case as I can reuse my older PD of June 2000. Is this correct?

Ques 2: If I cannot reuse my older PD, then shouldn't we try to convert my pending BEC case into PERM. The pending BEC case has the PD of December 2001.

Please help.

Thanks
Click to expand...

As your employer A already withdrew the I-140, you cannot retain the PD june 2000, in any case (whether it is new PERM or old LC from BEC).

If you file a NEW case in PERM, you cannot transfer PD from your LC (12/2001) which is pending at BEC.

Based on the very old PD from the case at BEC, it is worth to withdraw your pending LC at BEC and refile in PERM to retain PD. However it has risk of matching the job requirements as DOL says both the jobs should be identical including employer & employee name & address, job duties, job requirements, ect..
 
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Yates Memo

Thanks perm_lc for your reply.

Are you sure that I cannot retain the PD if my previous employer withdrew the I-140?

The attorney sent me the attached USCIS memo which implies that the PD can be retained as long as the previous I-140 was not revoked because of fraud or willful misrepresentation.

The relevant language is found on page 6 of the memo:

"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."

Gurus, please advise. If the previous employer withdrew the I-140 because they were using my approved labor for another employee, that does not seem to constitute fraud.

Thanks
 
1 PD can only be used for 1 person (except the AC21 law).

If you want to try, go ahead and do so. It does not hurt anything since the worst case you will get the later PD.
 
Gogol75 said:
Thanks perm_lc for your reply.

Are you sure that I cannot retain the PD if my previous employer withdrew the I-140?

The attorney sent me the attached USCIS memo which implies that the PD can be retained as long as the previous I-140 was not revoked because of fraud or willful misrepresentation.

The relevant language is found on page 6 of the memo:

"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."

Gurus, please advise. If the previous employer withdrew the I-140 because they were using my approved labor for another employee, that does not seem to constitute fraud.

Thanks
Click to expand...

It is a gray area in the law. You can try it and argue with USCIS with their own memoreanda as you have attached here.

See the following post by OH law firm.

Q45: I am an Indian and my labor certification was approved in May 2004. I immediately filed concurrent I-140/I-485 which are currently pending. My I 140 petition was approved in September 2004. In June 2005, I changed the employment of a same occupational classification. I have just learned that my former employer had withdrawn the I-140 petition in October 2004. I know I am O.K. as far as pending I-485 application is concerned. However, I am terrified that my priority date was lost because of the revocation. What would be my priority date at this point?
A: Under the rule of the priority date retention, once the approved I-140 is revoked, the alien beneficiary does not retain the priority date. The withdrawal of I-140 petition constitutes an "automatic" revocation under the immigration statute and the revocation takes effect upon receipt of withdrawal and agency notice. It appears that this raises a serious question of the effect of employer's withdrawal of the approved I-140 petition after 180 days of I-485 filing. This question remains a grey area in the interpretation of the AC 21 Section 106(c). Relevant to this question is the legislative intent of Section 106(c) of AC 21 as related to the question of whether Section 106(c) of AC 21 overrides the immigration regulation which provides that the alien beneficiary does not retain the priority date if the petition is withdrawn and revoked.
 
Another article ...

c) Priority Retention Termination: If approved petition is revoked, retention of priority date is also gone. Both automatic revocation and USCIS act of revocation on good cause and on notice will terminate retention of priority date. Approved petition is automaticaly revoked on four grounds: (1) Invalidation of underlying labor certification by the DOL; (2) Death of the employer or the alien beneficiary; (3) Employer's withdrawl of the approved petition; or (4) Termination of the employer's business. The third ground of automatic revocation (Employer's withdrawl) raises an interesting question in the context of AC-21 180 rule on change of employment. USCIS memorandum states that once I-140 is approved and I-485 passes 180 days, employer's revocation of the approved I-140 will have no effect on portability of the approved I-140 petition. If this memorandum implies that such approved I-140 petition is not subject to the automatic revocation after 180 days of I-485 filing under the AC 21 Act, one may be able to argue that the alien beneficiary may retain the priority date once he/she passes the test of portability of approved I-140 petition under Section 106(c) of AC 21 Act.

http://www.immigrationportal.com/showthread.php?t=143292
 
perm_lc said:
It is a gray area in the law. You can try it and argue with USCIS with their own memoreanda as you have attached here.

See the following post by OH law firm.

Q45: I am an Indian and my labor certification was approved in May 2004. I immediately filed concurrent I-140/I-485 which are currently pending. My I 140 petition was approved in September 2004. In June 2005, I changed the employment of a same occupational classification. I have just learned that my former employer had withdrawn the I-140 petition in October 2004. I know I am O.K. as far as pending I-485 application is concerned. However, I am terrified that my priority date was lost because of the revocation. What would be my priority date at this point?
A: Under the rule of the priority date retention, once the approved I-140 is revoked, the alien beneficiary does not retain the priority date. The withdrawal of I-140 petition constitutes an "automatic" revocation under the immigration statute and the revocation takes effect upon receipt of withdrawal and agency notice. It appears that this raises a serious question of the effect of employer's withdrawal of the approved I-140 petition after 180 days of I-485 filing. This question remains a grey area in the interpretation of the AC 21 Section 106(c). Relevant to this question is the legislative intent of Section 106(c) of AC 21 as related to the question of whether Section 106(c) of AC 21 overrides the immigration regulation which provides that the alien beneficiary does not retain the priority date if the petition is withdrawn and revoked.
Click to expand...

His case is not consider AC21. He did not file the I485 yet, so there is no law to protect for the approved I140.

But it does not hurt to argue since he will lose nothing if they don't accept his previous PD.
Like some Vietnamses lawyers argue with USCIS about to keep previous PD for maried children of Vietnamese citizens who served US during the war in the HO program (maried children and children over 21 years old can not go with their parents under HO program). Some cases, they win and keep the PD (around 30% chance), some cases they lose (around 70% chance). But, they still try hard since they could get back as many as 10 year early PD and their married children with their family can come to US immediately without waiting for visa.
 
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Thanks perm_lc and newbies.

I still have some hopes because the USCIS memo I atached is quite recent (September 2005). So we'll try to argue and see if we can recapture my old PD. Now I have 3 possible PDs:

1. June 2000: This is based on my approved (and subsequently withdrawn) I-140 thru a previous employer. If this is recaptured then that's the best case senario.

2. December 2001: This is based on my pending labor at BEC (TR, EB3) thru my current employer.

3. February 2006: This is the date when my PERM application will be filed. This is where it gets tricky. The attorney wishes to file PERM as a new application (hoping to recapture the June 2000 PD).

Based on what perm_lc and newbies have told me, recapturing June 2000 is highly unlikely. Shouldn't the attorney try to "convert" my December 2001 labor into PERM, rather than filing a new PERM? This would atleast not give me a February 2006 PD.

I will need to talk to my attorney again to get a good understanding of why he doesn't want to convert. Maybe my case doesn't fulfill all requirements of conversion.

The other tricky part is that I'm already in the 7th year on H1B. The 7th year ends in August 2006. If we convert to PERM that would mean that the December 2001 LC will be withdrawn. And I'm not sure how will the 8th year extension work.

Thanks and Regards
 
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Retention of Priority Date

Some more info about the retention of PD:

This is specifically for cases where I-140 was approved, the person then left the company, the employer then withdrew the I-140 and used the labor for someone else. Would the original person retain the PD?

Here's some encouraging news I found from murthy.com

Chat User : Thanks in advance! Can the priority date be transferred from an EB3 case to an EB2 case if the I-140 was approved under EB3?

Attorney Murthy : Yes, a PD from any earlier employment-based case is allowed to be transferred over to any other EB case in the future. So this is useful, but such a transfer of the PD is only possible after the I-140 petition has been approved in the earlier case, even if the employer later uses that earlier LC or revokes that I-140 petition for another employee when the employee leaves that employment! So it is useful to keep evidence of that earlier I-140 approval in your name to be able to request the transfer of the earlier PD for a future case!

Gurus, any comments?
 
priority date, need your help

Hi any one here, please clarify this to me. My labor was filed in Jul 2003 under EB3 RIR even though I was qualified under EB2. The case is still in back log centre and so far no 45 day letter. Mean while I got my case filed through PERM under EB2 in Nov and got through labor last week.

My question here is is it possible to use my old PD(Apr,2003 under EB3, still pending at back log center) to my new labor cert(approved under EB2 Nov/approved in Dec)? If so, how I can get that PD and at what stage? If any one of you shed some light, I truly appreciate it. Any links or valid proof so that I can forward them to my attorney to approach on such possibility.
 
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