Priority Date for Labor Substitution Cases

[Jharkhandi]

Nice post. Your point seems to be valid. Let me see if I can find something more which can conclude this topic unambiguously(either ways).

P.S. Please save baseball tickets for yourself - you don't owe me dinner!

 

[sg1973]

I think the 140 shall be getting the PD from the labor cert unless it is used by the original person for their 140. Also if the PD for the substituted labor is the 140 date, with the intention to be fair to the aliens waiting longer, in that case IMO, there would have been a separate queue for substituted 140s that the longer than the usual straight 140 queue. As this is not the case, I don't know if CIS considers it serious enough to enforce that. Also I have seen some applications on substitution labors (filed in 2004) getting FPs so I am not sure if the PD is the 140 date for the substitution cases.
Any ideas?

 

[believe_in_self]

Jharkhandi and Unitednations - your dedication and efforts are amazing

Most of your posts are for helping others even if that does not apply to you people directly or indirectly.

Your selfless help is so much appreciated.

I don't know at what stage you are in your GC journey, but I wish both of you a very good luck.

Take care..

 

[Jharkhandi]

Most of your posts are for helping others even if that does not apply to you people directly or indirectly.

Your selfless help is so much appreciated.

I don't know at what stage you are in your GC journey, but I wish both of you a very good luck.

Take care..

Thanks.

I have found something from Dept of State website which states:

***********************************************
9 FAM 40.51 N4.5 Substitution of Beneficiary on Approved Labor Certification (TL:VISA-313; 08-27-2001) If the INS service center determines that a substituted alien meets the requirements set forth in the original certification as of the date it was filed with the state employment office and the Form I-140 Immigrant Petition for Alien Worker, is otherwise approved, the petition shall be approved and processed like any other Form I-140 petition. The priority date shall be the date on which the labor certification was filed with any office within the employment service system of the Department of Labor.

***********************************************

Now, with this FAM, it seems that PD of substitute LC is original Labor Date. But this is from Dept of State and not from USCIS and not an interpretation of law itself. I am tilted towards what this FAM says but would still wait couple of more weeks to find out truth, when dates retrogress(cause something different is mentioned on lawyer's websites.).

 

[gcva]

Thanks.

I have found something from Dept of State website which states:

***********************************************
9 FAM 40.51 N4.5 Substitution of Beneficiary on Approved Labor Certification (TL:VISA-313; 08-27-2001) If the INS service center determines that a substituted alien meets the requirements set forth in the original certification as of the date it was filed with the state employment office and the Form I-140 Immigrant Petition for Alien Worker, is otherwise approved, the petition shall be approved and processed like any other Form I-140 petition. The priority date shall be the date on which the labor certification was filed with any office within the employment service system of the Department of Labor.

***********************************************

Now, with this FAM, it seems that PD of substitute LC is original Labor Date. But this is from Dept of State and not from USCIS and not an interpretation of law itself. I am tilted towards what this FAM says but would still wait couple of more weeks to find out truth, when dates retrogress(cause something different is mentioned on lawyer's websites.).

Thanks for your help in trying to clear the ambuguity of the priority Date for Labor Substitution cases.The reason for the ambuguity is interepretation of Priority date differently by different websites..

1) Immigration.com site says for substittion cases, it is 140 date.

2)Murthy.com says it is original labor filing date .(http://www.murthy.com/news/UD245reg.html)

3) Finally the 140 approval notices : Since the Priority Date comes into alive only with approval of 140 .Eventhough it is labor filing date, the priority date will be attached to the beneficiary only if 140 is approved.I have filed a labor substitution case with original labor filed on April 2001 and my 140 approval has the original priority date and not 140 date..

 

[Jharkhandi]

Thanks for your help in trying to clear the ambuguity of the priority Date for Labor Substitution cases.The reason for the ambuguity is interepretation of Priority date differently by different websites..

1) Immigration.com site says for substittion cases, it is 140 date.

2)Murthy.com says it is original labor filing date .(http://www.murthy.com/news/UD245reg.html)

3) Finally the 140 approval notices : Since the Priority Date comes into alive only with approval of 140 .Eventhough it is labor filing date, the priority date will be attached to the beneficiary only if 140 is approved.I have filed a labor substitution case with original labor filed on April 2001 and my 140 approval has the original priority date and not 140 date..

Agree. But your 3rd point raises questions. Does it means that one cannot get yearly extensions if one files 140 based on labor substitution? What would be priority date till 140 is approved? More so if it is going to be concurrent approval, does it means that extension of H1b (yearly) is not possible for substitution cases till practically 485 is approved?

 

[ardaviraf]

My 2 cents

All,
Mine is also a labor substition case and due to the priority date regession issue was concerned about my case.I contacted my company's Legal team and they told me that my PD was the original labor PD and that would be the date used for any date regression. The reason I trust them is that they have been very very good and one of the top ten in the country on immig matters.

ardaviraf

 

[Jharkhandi]

The part of this whole thread that bothers me and leaves an open questions is the last sentence in this cfr. If you could ask your lawyer what this means it may solve this discussion.
(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.

Two states of priority dates:
1. It exists.
2. It is attached to your case.

The situation 1 starts once you file LC. If 140 is don,e then PD is attached to your case. (As PD has meaning only for 485 adjudication). In this context, what is meant is that once 140 is done and PD is attached, it cannot be transferred.

 

[Jharkhandi]

This was my original thinking. That is in cases which involved labor substitution and a person had already filed a 140 and had gotten a priority date but then employer revokes 140 and substitutes another person with labor then that person's priority date may be date of filing of 140.

Logic behind all this is that because of ac21 even if employer revokes original person's 140 that person can still get greencard as long as other areas of ac21 are satisfied. Now if the labor gets substituted then the new person would also get the same priority date of original labor. Therefore, you could have two people getting greencard on same labor with same priority date.

This is why I thought the part of "it cannot be transferred" would be applicable in above paragraph situation.

However, it could be as simple as I have a priority date, you have a priority date but because certain countries priority dates retrogress I am willing to switch mine with your's. Maybe this is the meaning of that last sentence.

I am sure about my last post.

 

[MBMseekingGC]

jharkhandi,

Yates had come out and said for purposes of 7th year extension in cases of labor substitution they will use the priority date of labor to determine if it is older then 365 days.

Note: this contradicts with immigration-law.com According to his web-site in this scenario you would have to do the substitution a year prior to 7th year extension. His web-site is the one where usnycs gets much of his information.

http://www.murthy.com/news/UDh121st.html


Substitution Beneficiary Enjoys H1B Extension Benefit!

In a particularly liberal construction of the law, Mr. Yates indicates that, if a labor certification, previously approved for another "green card" candidate but unused for that candidate, is now being used to support an I-140 petition for an H1B status holder, the date of filing of the original labor certification may be used for that H1B nonimmigrant to file for one-year incremental H1B extensions, as long as additional proof is submitted that the person has a pending or approved I-140 based on that labor certification. Under this interpretation, therefore, a person who is using a substituted labor certification that was filed more than 365 days prior, but whose employer filed the I-140 petition for the H1B employee only two months before the six-year H1B window expired, is now eligible for the one-year incremental extensions.

UN,
My case is proof that Attorney Murthy is right on this issue of 7th year H1 extensions for Labor Substitution cases. The extension was filed a few days before 6 years of H1 expired. I-140 had been filed just a couple of weeks before that, using substituted Labor. In other words, all applications were made pretty close to the end of 6 years of H1. All have been approved.

 

[Participant]

Two states of priority dates:
1. It exists.
2. It is attached to your case.

The situation 1 starts once you file LC. If 140 is don,e then PD is attached to your case. (As PD has meaning only for 485 adjudication). In this context, what is meant is that once 140 is done and PD is attached, it cannot be transferred.

Here we need to consider two situations.
1)If LC(required) is filed and 140 approved,the PD of labor reins.
2)For cases in which LC is not required for such EB categories,140 is approved and the date is 140 filing date?(Still priority date is required for
correlating Visa availability).

 

[Participant]

.

Logic behind all this is that because of ac21 even if employer revokes original person's 140 that person can still get greencard as long as other areas of ac21 are satisfied. Now if the labor gets substituted then the new person would also get the same priority date of original labor. Therefore, you could have two people getting greencard on same labor with same priority date.

QUOTE]
Even if Original LC(of A) is substituted to 140(of B) and B uses AC21,simply
140 is ported.Here again there will be no 140 with out underlying
LC as the basis.Then original employer using LC again how it does arise/Or
how the LC will be treated as unused even orginal employer tries to revoke.?
(Assuming that 140
was already approved and 485 is pending more than 180 days).In this sense
amounts to both 140 and underlying LC are ported logically for the same person,it seems .

 

[Participant]

Participant, this is one of the loopholes that in my mind caused uscis to change some of their practices:

Although yates instructed in his ac21 that a 140 after being approved and 485 has been outstanding for more than six months then uscis will not revoke the 140 and they will issue a NOID to beneficiary and as long as they can show they have same/similar job they will get approved.

However, as can be seen by various posts over the last year, adjudicators were not following this advice. That is, they would revoke the 140 upon request by employer even if 485 was outstanding for more than 180 days.

Employers would do this for two reasons. They want to use the labor for someone else or to spite the employee for leaving. If they substituted the labor the substituted beneficiary could still get his/her 140 approved as long as the original person hasn't gotten the greencard yet.

In essence the current practices allow two people to get the greencard with the same labor.

Even though Yates said they would not revoke 140; they are bound by the automatic revocation rules. Among those rules a 140 is revoked upon request of an employer, the cessation of operations by an employer.

Now I believe that uscis by doing concurrent processing and insisting that portability cannot be used until 140 approval they may have closed the loophole of two people getting the greencard on same labor (this could get challenged in court as has been discussed many times since ac21 doesn't require 140 approval to use portability)..................................
.
....................................
http://boards.immigrationportal.com/showthread.php?t=145715&highlight=chai

Good points and linkage.
Yes,Still AC21 is in the shadows, misty and has not come out clearly.
But as the things stands:
Mr. Rajiv Khanna pointed out this in the reply that so far regulations and clear
guide lines are yet to be brought by CIS.
From the Baltimore issue,prima facie,it establishes that CIS is acceptable for
protability sense,in broad.
CIS mentions recently(i don't remeber the link memo but..)that once beneficiary changes employer( it is better) to inform.Once informed whether CIS still considers the employer request is to be seen.(I guess once the beneficiary informs CIS,non-revocation may have automatic legal standing)
For us more to be clear that employer has legal standing for revocation once AC21 is followed strictly, We are yet to see a case that employer has success in revocation in AC21 applicability.Then it will be more expilcit.
The link case is not dealing with AC21 but 140 revocation issue in different locus standi. but delaing with the revocation issue.
Unless the revocation loop holes are plugged and AC21,the employer may play a havoc but when challenged the legality his success chances may not be bright.

 

[kvpt_mm]

Look at my situation

I filed my I140/I485 using a substituted LC of an employee in the sponsoring company who left them after filing the LC.So i filed my I140 by attaching a original LC from Labor department and got approved during July 2003. After about an year i had to switch job and use AC21 by leaving the GC sponsoring employer and started working on EAD with new employer.

Later my GC sponsoring employer (previous) revoked my I140 by applying I140 for another benificairy using the same LC that i used(He claims he didn't do it). I guess he must have used the copy of the LC that i used and sent the new I140 for that beneficiary and USCIS revoked my I140 and sent me NOID asking for employment verification which i replied within 30 days.

Later i applied for FOIA on my I140 to find out what exactly was happend. I saw on my I140 application that was hand written and signed by Sandra Bushey, I140 revoked by employer on date dd/mm/yy and original LC was placed in new I140 petition as requested and also the PD date was on my I140 was the date original Labor filed, which is Aug 2001.

So this is my story. In this situation until my I140 revoked i get the PD as substituted original labor filed date because that LC was never used for any immigration petition until that time but the new beneficiary who used the copy of my substituted LC will get the PD as his I140 Receipt date.

But as per the note from "Unitednations" on section 5 of page 1 of this thread i hold no PD because my I140 was revoked [A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date]

Now i am confused.. because earlier i thought my PD is 08/2001 because it was hand written on my I140 application by center director but now iam in complete dilemma

any inputs are welcome on this matter..

 

[Participant]

kvpt mm:
What is final decision made by CIS regarding your 140 revocation?
I guess you sent a reply to NOID and your yet to receive a decision.
Here.in your reply,if you have invoked AC21 provision specifically,the CIS possibly need to consider retaining your I140 it self.
You mentioned that PD date mentioned on 140 is original labor date.
As per general understanding on AC21 and (hopefully CIS considers your due claim), then you will retain your 140 as vaild and the other petition submitted
shall become void and untenable.(One labor one -one 140 principle).
In the above situation,you presumably will have your PD as same.
(Whether NOID could have been preempted,If AC21 letter had been sent
to CIS before,is different but interesting/serious question as sub.lc employer may play all things when first substituted incumbent leaves him ).
This is just my opinion.let's see for other's experiences or opinions.

 

[snay]

usnycus, I keep reading the rule back and forth and depending on my own bias I can't conclude on it one way or the other. I think the easiest way might be to just do a poll on 140 approved substituted cases and see where the priority date was on their approved 140's?

What do you think?

For statistics sake, mine is a labor substitute. Mine is EB2 and I140 and I485 RD is 10/16/03 @ NSC. No word on approval yet.

 

[I140helppls]

re

mine is a labor sub . case and priority date on my 140 is the original labor filing date. so is it correct that for all labor sub cases ,priority date is the original labor date and not 140 filing date.

 

[usnycus]

All individuals who have submitted I-485 with Sub-LC and are posting here in this thread got PD set to original LC filling date.

Also, following is posted at www.immigration-law.com on 11/01/2001

======================================================
11/01/2004: Substitution of Labor Certification Beneficiary Alien and Priority Date

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.

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.

=======================================================

usnycus, I keep reading the rule back and forth and depending on my own bias I can't conclude on it one way or the other. I think the easiest way might be to just do a poll on 140 approved substituted cases and see where the priority date was on their approved 140's?

What do you think?

 

[Participant]

All individuals who have submitted I-485 with Sub-LC and are posting here in this thread got PD set to original LC filling date.

Also, following is posted at www.immigration-law.com on 11/01/2001

======================================================
11/01/2004: Substitution of Labor Certification Beneficiary Alien and Priority Date

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.

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.

=======================================================

From the above ,priority date and labor approval seems as two entities.
Case1:The Alien has the original labor:Here two entities belong to same alien.
Case2:The Alien has sub. labor.Here the labor is diistinct than priority date PD is associated to 'Origial Alien' and(Sub) Labor is associated with Sub. Alien.
But Then many Sub.LC approved guys have posted having PD as of original labor?
The catch may be:The orinal LC guy has no approved 140.As per
'Under the immigration rule, the alien beneficiary "retains" the priority date once the labor certification is approved "and" I-140 petition is Approved?
Is it only after his 140 approval or??

Even 8 CFR 204.5 d,mentions as not transferable,but it seems there is an INS memo(do not know whether it is of current validity.)which says tranferable.
Pl.see details on the other thread:http://www.immigrationportal.com/showthread.php?p=961799#post961799

 

[believe_in_self]

I will just assume the worst

There is nothing we can do about it now..

so assume the worst, hope for the best.

Let us hope retrogression is only upto some date in 2004...