Priority Date Retrogression: Read This before Freaking Out

I-140 adjudication

TheRealCanadian said:
However, if you are a concurrent filer, it is unlikely that USCIS will ajudicate your I-140 and give you AC21 benefits.
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From my speculation, USCIS may adjudicate the concunrrent filed I-140. The reason is after Jan 2005, there'll be fixed (hopefully, small) number of pending concunrrent filed I-140s in EB3. Why would USCIS take the blame for not complying AC21 law approved by Congress just to avoid processing these fixed number of 140 to save resources?

When last time there was cut-off date in visa number in 2000, AC21 and concurrent filing didn't exist. So it didn't make sense for INS to process pending 140 if visa number wasn't availabe - it wouldn't benefit anyone.
 
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grunggy said:
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.
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Please check the earlier posting on this thread and you will be convinced that the original labor filing date is considered as the priority date even in the case of labor substitution.

I140 RD - Feb,5 AD, Oct, 26 (labor substitution)
The priority date on the approval is Aug, 2001 (the original labor filing date)
 
Hi PD,

Mine also Labor substitution. Labor was filed in Jan 2001. In my I140 approval notice it showed my priority date is from Jan 2001. Its looks there is no difference for Labor substitution. I asked my attorney he said that mine PD is Jan 2001.

Thanks

Explorer19 said:
Hi Msd_gc

This is in reference to the labor substitution priority date

see my signature for further details.

I used a labor substitution which had a priority date of 11 may 1998 and I filed my I-140 on 25 Nov 2002 and got it approved in Jan 2004. Then I received a I-140 approval notice which clearly said that my priority date is 11 may 1998 and NOT 25 Nov 2002.
Then I applied for my I-485 on 24 Feb 2004.

Apart from my case, I have 2 other friends who used labor substitution (one is already approved for greencard and the other has I-140 approved)

the one (whose I-140 got approved 2 months back) filed concurrently in April 2004 and his I-140 got approved recently and his I-140 approval notice states the priority date as his original labor filing date which was substituted for him and NOT his I-140/I-485 filing date of April 2004


so these real life examples clearly state that even in labor substitution case, the original priority date is applied to the substituted person also no matter when he files his I-140/I-485


Hope this is clear

So I request people not to give false/incomplete infomation which can have bad effect on other people.

Thank You


Note: Please read the section "9FAM 40.51 N4.5 Substitution Of Beneficiary On Approved Labor Certification" on Page 6 and judge for urself.
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PD for Sub.LC

Mine is also labor substitution and 140 approved a while ago.
The PD mentioned in140 is original labor date and not 140RD.
Different 140 approvals of SUB.Labor posted on this thread /forums are obviously are from different service centers and the PD mentioned in all cases is orginal labor date and is consistent.
 
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Hi,

I am in EB2 category, so I don't think retrogression affects me, right? But what will happen to my wife's 485? Is she also considered as EB2? Right now because of some delays, I may not be able to file 485 till beginning of next year. So, if the dates retrogress and if my wife is not considered EB2, it will be a problem for me. Please answer this.

Thanks..
 
hi gkmhan

ur wife is just ur dependent and only primary applicants belong to a category. Derivatives are not divided into categories. They just depend on primary. So ur priority date is her priority date
don't worry but file I-485 as soon as possible
 
category ??

I had used a substituted labor, and I don't have a copy of that. The PD on 140 approval is from the original LC.

Is there a way to determine EB category from 140 approval notice or some other means?
 
Late filing of 140/485 for spouse

Hi,

My labor got approved recently and I am in the process of filing 140 and 485 concurrently under EB-3 categoty. Problem is that my wife is in India right now and the lawyer said that she can't file the papers for her. Lawyer told me that they can file my 140 and 485 before Jan 1,2005 but have to wait till mid of Jan to file my wife's (she will be returning mid of Jan) papers.

But if the dates are regressing in Jan 2005 and my papers are filed before that, how will it affect my wife's status or priority date. My wife is dependent.

Any help would be appreciated

Thanks
 
tarzanguy said:
But if the dates are regressing in Jan 2005 and my papers are filed before that, how will it affect my wife's status or priority date. My wife is dependent.
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Your wife's priority date will be the same as yours, no matter what happens to the EB3 dates. The only question is if your PD will remain current in January 2005. If it is no longer current, then your wife will need to maintain valid non-immigrant status until they become current again and she can file her I-485.

If her status is a dependent status such as H-4 or L-2, you will need to maintain H1/L1 status and not use your EAD.
 
Thanks a lot TheRealCanadian.

So, if I can file my papers before the end of the year, hopefully I and my wife should be OK even if the dates regress, right ?
 
To TheRealCanadian

TheRealCanadian ,

I have a question for you , my LC was filed on 04/03 and my 140 / 485 was filed in 11/03 . Any idea on what could happen in my case , possible dates for PD when the 2005 Visa Bulletin is sent out .

Your help is much appreciated,
 
Retrogression and its affects

Experts,

Here are few scenarios and I wish to know the outcome for all these given the following..

PD: Dec 1, 2004
Catagory: EB3
H1B Exp: Oct 1, 2006

Scenario 1: If LC takes more than a year, i.e past Dec 1, 2005 I may be able to qualify for 7th year extension, correct??

Scenario 2: If LC takes less than a year and I140 also takes less than a year, do I qualify for 7th year extension??

Scenario 3: If LC and I140 combined takes less than a year, and I485s for EB3 are retrogressed by 2 years lets say (God forbid), do I qualify for the 7th year extension??

I guess by all these scenarios, what I meant to ask was, even if the PD is long before the last 365 day mark of H1B, does one still qualify for 7th year extension??

Thanks in advance for your valuable comments.
 
12/04/2004: Agonizing Waiting Time for Indian, Chinese, Filippino Employment Immigration Aspirants

Most employment immigration aspirants expect to witness the wind blowing towards the direction in their favor. Labor certification reform is underway to reduce the backlogs and to reduce the processing times of permanent labor certification applicaitons. USCIS is pushing forward its plan to reduce the processing times of permanent residence applications pursuant to the Bush's five-year 6-month processing time commitment. Additionally, upcoming cutoff dates for EB-3 employment immigration visa numbers for India, China, and Philippines will help the processing times for permanent immigration proceedings for nationals other than these three nations. As we repeatedly stated in the past, life is an irony in that generally one group has to suffer to give a room for other group because of the immigration quota system. There is no reliable information available about the depth of the retrogression of EB-3 numbers for these three countries, but rumors reflect that the retrogression may turn out to be steep.
Generally, employment-based immigration opportunities are getting narrower for the people from these three countries because of the U.S. government actons to restrict certain L-1B intracompany transferee nonimmigrants, H-1B professional workers other than holders of higher-level education, plus immigrant visa number retrogression. When it comes to the visa numbers, the retrogression of EB-3 numbers will definitely add pressure on EB-2 numbers for these three nations as it is likely that a large number of EB-2 aspirants will come from these three nations. In the long haul, it will eventually affect EB-2 numbers for these people just as the country experienced not too long back in the history of immigration in this country. The people from these countries will just have to prepare themselves for the changing immigration environment. The following factors, among others, need increased attention for the people from these three nations. (1) Unavailable concurrent I-140/I-485 filing and ancillary benefits of EAD and Advance Parole pending I-485 application. It will substantially block out the opportunity for AC 21 180-day rule of change of employment pending I-485 applications and may demand a faithful adherence to the immigrant petition sponsor or labor certification sponsor employer. Accordingly, it will restrict mobility of the H-1B workers during the period of unavailable visa numbers. Changing the employers during the stage of labor certification will kill the priority date unless the intial labor certification is continued by the former employer and I-140 petition is approved through the approval of the intital labor certification application. Changing employers will still turn out to be very risky. (2) 7-Year H-1B extension. Under the current rule, the opportunity for 7th-year H-1B extension after 365 days of pending labor certification application or petition will be wiped out if the labor certification or petition is denied and the decision becomes "final." Such "final" action will kill the opportunity for 7-year extension of H-1B which become increasingly important for the immigration journey. If such "final" action is taken at the stage of labor certification application, so goes the priority date. For the purpose of the 7-year extension eligibility, the change of employers and filing a new labor certification application will not affect his/her eligibility because the USCIS currently takes a position that the retention of 365-day is "alien-based" and the alien can carry such 365-day for the purpose of 7th year H-1B extension, provided that the intial labor certification is not denied and such decision does not become "final." Additionally, even if he/she is successful in keeping the 7th-year extension eligiblity, he/she will lose the priority date by changing the employers and starting a new labor certification application in the event that initial employer withdraws or substitutes the alien beneficiary at the stage of initial labor certification application. It is going to be deadly! (3) USCIS policy on processing I-140 petition during the period of visa number unavailability. Even during the period of visa number unavailability, approval of I-140 petition is important when they change the employers and want to retain the priority date. Currently, unless I-140 petition is approved, the priority date cannot be retained. At this time, though, it is an open question whether the USCIS will continuously process I-140 petitions for those whose visa numbers will not be available for a substantial period of time.
 
Gurus,

We have filed concurrently for I140 and I 485 and got our (me and wife) EAD recently.We haven't filed for AP since we want to continue on H1.
If my mife start working (based on EAD) she will lose H4 status and may require AP to travel abroad. So my question is, Will EAD applications be accepted after Jan 1 (assuming PD retrogress on Jan 1) for a pending I140/I485 concurrent petition.

Thanks.
 
letsee said:
Gurus,

We have filed concurrently for I140 and I 485 and got our (me and wife) EAD recently.We haven't filed for AP since we want to continue on H1.

If my mife start working (based on EAD) she will lose H4 status and may require AP to travel abroad.
--- yes
So my question is, Will EAD applications be accepted after Jan 1 (assuming PD retrogress on Jan 1) for a pending I140/I485 concurrent petition.
---- once I-485 is filed you are eligible for EAD and AP. best option is you should maintain H1 status becase your I-140 is not approved. If your wife can wait better use EAD after your I-140 gets approved. H1 and H4 status has advantages
Thanks.
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Pre-Approved labor

Hi All,
I got pre-appoved labor from a different company.I want apply 140 and 485 at a time.I heard i cannot apply both 140 and 485 after Jan 01,2005.Is that right?.If i want to apply both i have to apply before Dec31 ??.Any input will be great help.
Thanks in Advance
 
Realcanadian, Joef and other gurus.please answer

what happens in case of priority dates going back for the ones who have already approved but waiting for the passport stamping.

when the dec visa bulletin is out ( middle of dec), there might be few who have been approved but just waiting for the approval notice or infopass appointment. will they be stamped.?

Was curious as my lawer told me that priority dates have to be current at the time of stamping not at the time when the petition is approved.

Thanks.
 
If the PD is implemented coming Jan, will the processing of I-485 be based on the following order of preference?
1. Priority Date and then
2. Receipt Date

If that is the case, does this mean people with earlier PD, but late I-485 will get approved sooner than late PD (with an earlier 485 RD compared to the previous scenario)?
 
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