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Registered Users (C)
Anyone understands the following news?
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09/17/2004: Potential EB Visa Numbers Cut-Off Dates and Retention of Priority Dates
As there is a likelihood that the employment-based immigrant visa categories may face cut-off dates in the future, people should review their plans to deal with the situation. Following are the rules on priority date under the immigration laws:
Priority date is the date when the alien labor certification application is receipted by the state labor certification office in the ALC-based immigration proceedings and I-140 petition is receipted by the USCIS in the ALC-waiver immigration proceedings such as EB-11, EB-12, EB-13, EB-2(NIW), EB-2(Schedule A), EB-3(Schedule A). If the filing is rejected for certain deficiency, no priority date is established even if it is received by the agencies. In the labor certification application, missing signature of the employer or alien is considered such deficiency. In the I-140 petitions, missing signatures and defective filing fee check are considered such deficiencies. Sooner the applidcation is filed, sooner one gets the earlier priority date.
Retention and Transfer of Priority Date: Once I-140 petition is "approved," the priority date is attached to the alien beneficiary. Accordingly, even if the alien changes the employment and start a new employment-based immigrant proceeding, his/her prior priority date is retained and grandfathered. Priority date is not attached for the purpose of the retention even if labor certification approved until the I-140 petition is filed and "approved." Once attached, the priority date can be cross-transferred among EB-1, EB-2, and EB-3 once the priority date in one of these classifications is attached and retained. Retained priority date can be transferred only among EB-1, EB-2, EB-3, and cannot be transferred from or to Investor Immigrant Petition (I-526) or Special Immigrant Petition (I-360). Retained priority date cannot be transferred from or to family-based immigrant petition (I-130).
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.
Priority Date Valid Only with the Alien Beneficiary and Cannot be Transferred to Other Aliens.
This is the time to review the retention rule regulation, 8 CFR 204.5(e).
"(e) Retention of section 203(b)(1), (2), or (3) priority date. -- 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. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien."
-------------------------------------------
09/17/2004: Potential EB Visa Numbers Cut-Off Dates and Retention of Priority Dates
As there is a likelihood that the employment-based immigrant visa categories may face cut-off dates in the future, people should review their plans to deal with the situation. Following are the rules on priority date under the immigration laws:
Priority date is the date when the alien labor certification application is receipted by the state labor certification office in the ALC-based immigration proceedings and I-140 petition is receipted by the USCIS in the ALC-waiver immigration proceedings such as EB-11, EB-12, EB-13, EB-2(NIW), EB-2(Schedule A), EB-3(Schedule A). If the filing is rejected for certain deficiency, no priority date is established even if it is received by the agencies. In the labor certification application, missing signature of the employer or alien is considered such deficiency. In the I-140 petitions, missing signatures and defective filing fee check are considered such deficiencies. Sooner the applidcation is filed, sooner one gets the earlier priority date.
Retention and Transfer of Priority Date: Once I-140 petition is "approved," the priority date is attached to the alien beneficiary. Accordingly, even if the alien changes the employment and start a new employment-based immigrant proceeding, his/her prior priority date is retained and grandfathered. Priority date is not attached for the purpose of the retention even if labor certification approved until the I-140 petition is filed and "approved." Once attached, the priority date can be cross-transferred among EB-1, EB-2, and EB-3 once the priority date in one of these classifications is attached and retained. Retained priority date can be transferred only among EB-1, EB-2, EB-3, and cannot be transferred from or to Investor Immigrant Petition (I-526) or Special Immigrant Petition (I-360). Retained priority date cannot be transferred from or to family-based immigrant petition (I-130).
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.
Priority Date Valid Only with the Alien Beneficiary and Cannot be Transferred to Other Aliens.
This is the time to review the retention rule regulation, 8 CFR 204.5(e).
"(e) Retention of section 203(b)(1), (2), or (3) priority date. -- 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. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien."