I have AOS filed on an approved I140 (EB2, PD: Oct/2006). I have another LC Subtituted 140 (EB2, PD: 02/2002) pending at NSC since Jan/2007, that may be approved soon. What is the process of replacing the new PD I140 to Old PD I140 for the applied AOS (I485) applications? What form # etc. is needed?
Thanks in Advance.
It appears that there are some people who are confused in the immigrant community on the rule of transfer of priority date in the immigration proceedings. The current rules are as follows:
The priority date of employment-based immigrant petition is retained only after the I-140 petition is approved and the alien beneficiary of multiple approved I-140 petitions through the same employer or different employers can claim the earliest priority date in the I-485 application proceedings.
The retained priority date is available for such transfer only between or among the multiple employment-based I-140 petitions for the same alien. The employment-based priority date cannot be transferred to a family-based immigrant petition of I-130 petition of the same alien or other non-employment based immigrant proceeding such as diversity immigrant proceeding or refugee proceeding.
The retained priority date is limited to the "individual" alien beneficiary only and cannot be transferred to other individuals including the spouse even if the spouse has another approved I-140 petition.
Distringuished from the transfer of a retained priority date is the rule of substitution of alien beneficiary which is a history by now. In the context of the substitution rule, the new alien takes over the priority date of another alien's priority date involving the alien's labor certification, but it is not considered a transfer. The new alien is just replacing the old employee either in pending labor certification proceeding or in the I-140 proceedings. It apparently confuses people as a transfer of priority date.
Even though an alien cannot obtain a transfer of priority date from the spouse, in the two contexts, some aliens can receive help from the spouse. One is the transfer of the alien's pending I-485 application which the alien filed as the derivative beneficiary of the spouse's approved I-140 petition to his own approved I-140 petition that has a different priority date. The same rule applies in vice versa. For instance, if my wife obtained I-140 petition and my wife and her family members including myself file I-485 applications based on her approved I-140 petition, assuming that the visa number is available, I can move my own pending I-485 application as the derivative beneficiary of my wife's I-140 petition to my own approved I-140 petition if my own I-140 priority date is more favorable than my wife's. My wife has two options in this context. Either she also moves her pending I-485 application to mine switching from a status of primary beneficiary of her own petition to a derivative beneficiary of mine to take advantage of my favorable priority date, or she can keep her pending I-485 application with her own employer without moving her I-485 application using my approved petition. This confuses people as transfer of priority date, but it is not a transfer of priority date. It is a rule of changing the underlying I-140 petition from his/her own to the spouse's. Such I-485 application transfer can take place back and forth more than one time depending on the visa number movement for different classification of employment-based immigration.
Another benefit an alien with the approved I-140 petition can receive from the spouse is the rule of cross chageability or alternate chageability of nationality. If the spouse was born in a different country and applies for I-485 as a derivative beneficiary of my I-140 petition along with me, both of us can use my wife's country of bith as our nationality for the purpose of the determination of the nationality in the Visa Bulletin. Obviously, Indians or Chinese, Mexicans, Philippines citizens, who are married to a spouse who was born in a country that is one of the Rest of the World (ROW) countries will receive a tremendous benefit from such spouse. The spouse can have a same citizenship with the principal alien and it is the place of birth of the spouse that determines the cross chargeability or alternate chargeability nationality. Again, this gives an impression of transfer of priority date, but it is not.
As people may have to go through a long journey as affected by the July 2007 VB fiasco, the foregoing information should give some help to people who are confused about the priority date transfer or related issues.
Source: immigration-law.com
