Please check this website to find the breaking news about this new, yet non-offical rule. And the following is a copy from that website: http://www.immigration-law.com/
09/20/2005: Rule of Priority Date Retention and Rule of Transfer of I-485 Application to Another Petition
It appears that there are confusions in the immigration community between the rule of retention of priority date and the rule of transfer of I-485 application to a later approved second I-140 petition. This reporter thus has decided to report this important issue in this page rather than in Visa Retrogression Q&A page.
Rule of Priority Date Retention: This rule is provided in Section 204.5(d) of the immigration regulation as follows: A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. Under this rule, when an alien has a multiple approved petitions with the same employer or different employers, the alien can use the earliest priority date in filing I-485 application assuming that the earliest priority date is "current" for him/her. For instance, assume that a labor certification based I-140 was approved in May 1999 for EB-3 but because of the retrogression, he/she was unable to file I-485 application. Assume also that same or different employer filed another L/C and petition of EB-2 for him/her which has also been approved in September 2005. In October, EB-2 will also be retrogressed and the EB-2 visa number will not be available to him/her if he/she is an Indian or Chinese because of the low priority date of the second EB-2 I-140 petition approval. However, under the rule of priority date retention, he/she can file I-485 in October 2005 using approved EB-2 petition using the priority date of May 1999, provided that the 1999 EB-3 petition has been not revoked. This cross-transfer of the priority date is available only among EB-1, EB-2, and EB-3. As will be explained later, this priority date transfer is not allowed between EB-1,EB-2,EB-3 and EB-4 or EB-5, or Family Based Immigrant Petitions.
Rule of Transfer of Pending I-485 Application to Second Approved Petition: This rule is clarified in so-called Pearson Memorandum in 2000, which basically stated that pending I-485 can be transferred to the second approved petition, no matter what kind of petition the second petition is. Assume that he/she filed EB-3 I-140 petition and I-485 was filed in 2004 before the visa number retrogressed and pending. Assume also that another immigrant petition of whatever nature, including EB-1, EB-2, or EB-4, EB-5, Family-Based petitions, is later filed and approved. In such case, he/she does not have to refile I-485 application to use the second approved petition, provided that the first petition was not revoked and the visa number is current for the second petition. In this transfer of I-485, priority date may or may not be transferred depending upon the nature of the two petitions. If the two petitions are in EB-1, EB-2, or EB-3, the priority date will also be transferred. If the two petitions include EB-1/EB-2/EB-3 and Family Petition or EB-4 or EB-5, the priority date cannot be transferred between these two petitions, even though the pending I-485 application can be transferred between these two petitions. Simply put, "transfer of I-485 between two petitions" means he/she does not have to refile I-485 application to use second petition, while the rule of priority date retention defines the transfer of the priority date among EB-1, EB-2, and EB-3.
