Labor Substitution - What is the Priority Date?

D

dinnu

Registered Users (C)
What will be the priority date in the following example.

Say my company applied for my Labor on xx/xx/xxxx. And while it is pending they decide to use an already approved labor with a priority date of yy/yy/yyyy and file for I140 with labor substitution.

What will be my priority date? xx/xx/xxxx or yy/yy/yyyy

Thanks
 
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I found the answer (immigration-law.com)

Substitution of Labor Certification Beneficiary Alien and Priority Date

1. Potential retrogression of the visa numbers in January 2005 brings back the issue of priority date on the spotlight. Under the immigration rule, the alien beneficiary "retains" the priority date once the labor certification is approved "and" I-140 petition is approved. Accordingly, unless the I-140 is revoked or the labor certification application is revoked, this specific alien retains the priority date established by the labor certification application. The same alien thus retains the priority date even if the alien starts a new labor certification application with the same employer or another employer. The concept of priority date is thus "alien-based" and the specific alien carries with him or her the priority date.

2. The priority date is not only "alien-based" but also limited to a specific alien and cannot be transferred to another alien. Consequently, an alien who files I-140 petition as the substituting beneficiary of an approved labor certification application takes over the approved labor certification application but not priority date. Accordingly, an alien who files I-140 petition as a substituting alien establishes his/her priority date at the time of filing of his/her I-140 petition and not on the date of filing of alien labor certification application by the employer on behalf of the original alien beneficiary who is substituted. The regulation specifically states that a priority date is not transferrable to another alien.
 
May be... but ..

I used a substitute labor. When I filed my I-140, the reciept did not carry any PD. However, when it was approved, the PD was set to the labor approval date in the approval notice. Note that it is not the labor filed date but labor approved date.

It could be just another guy ignoring/un-aware of the law. Hope this helps....
 
All my memory alerts me that the priority date should be set as the date the Department of Labor receieved your labor application.

My 485 receipt was empty for the priority date. I need to check my 140 approval notice.
 
dinnu said:
I found the answer (immigration-law.com)

Substitution of Labor Certification Beneficiary Alien and Priority Date

1. Potential retrogression of the visa numbers in January 2005 brings back the issue of priority date on the spotlight. Under the immigration rule, the alien beneficiary "retains" the priority date once the labor certification is approved "and" I-140 petition is approved. Accordingly, unless the I-140 is revoked or the labor certification application is revoked, this specific alien retains the priority date established by the labor certification application. The same alien thus retains the priority date even if the alien starts a new labor certification application with the same employer or another employer. The concept of priority date is thus "alien-based" and the specific alien carries with him or her the priority date.

2. The priority date is not only "alien-based" but also limited to a specific alien and cannot be transferred to another alien. Consequently, an alien who files I-140 petition as the substituting beneficiary of an approved labor certification application takes over the approved labor certification application but not priority date. Accordingly, an alien who files I-140 petition as a substituting alien establishes his/her priority date at the time of filing of his/her I-140 petition and not on the date of filing of alien labor certification application by the employer on behalf of the original alien beneficiary who is substituted. The regulation specifically states that a priority date is not transferrable to another alien.
Click to expand...

Dinnu,
Your point 1) noted here is correct and also correctly refers Immigration-law websites quote for this. But I am not sure from where you got point 2). Is this from same website?. As far my lawyer says that Labor substitution case also carry the same priority date as mentioned in approved labor which another alien is using.
Hope it works out.
 
Alok2004,

I copied and pasted it from immigration-law.com. Goto http://www.immigration-law.com , click on breaking news and read the item dated 11/01/2004 (or you can search for the word Substitution on that page).

mylvka, If you read my post carefully you will notice that I am specifically talking about Substitution cases.
 
dinnu,

my post actually was about to question the part

Under the immigration rule, the alien beneficiary "retains" the priority date once the labor certification is approved "and" I-140 petition is approved.

It looks like the approval date instead of the filing date was used to set the priority date in that text, at least it's confusing some people.

I don't know the substitute case. It would be nice to be able to use early date if it's allowed so.
 
mylvka,

It means you can use the receipt date of your Labor as the priority date, if and only if your Labor is approved and your I-140 is approved.

For example, lets say your labor is approved from company A and they file for I-140. You change your job before the I-140 application is approved and join Company B. Now say Company B files for your labor again. In this scenario your priority date will be the receipt date of Company B's labor application.

In the above example if you change your job after the I-140 application (filed by Company A) is approved, you will retain your priority date from Company A.
 
I talked to my lawyer about it and she confirmed that my PD is 03/2000 which is the PD of labor irrespective of the substitution. She told me not to worry about the PD retrogression.
 
will_get_there,

Did your company use labor substitution for you? If not, then you don't have to worry about retrogression.
 
Hi Guys,

What about the clause of ability to pay since the priority date in case we switch employers. So far i have only seen people discusssing similar job duties and job profile. Does that mean its no more issue ?

I have subsituted LC too and the 140 approval notice lists the PD as Sept 2000 where as i applied for 140 in Jun 2002.

Cheers

Tanjar
 
PD for Substituted labor

Guys,
What about the fact that,
PD is assigned to a person only at the time of approval of I-140.
Any insight?
 
I applied my 140 in june 2003 using labor substitution, this labor was filed in feb 1997 with state. When I got 140 receipt the PD column was emplty. My 140 approval notice clearly say Feb 1997 in Priority date column.
I hope this would help
 
Vicky,

Thanks for the information. Could you please tell me what the source of the document is. In other words, can I find this on USCIS or DOL website?
 
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