Priority Date Retrogression: Read This before Freaking Out
- Thread starter TheRealCanadian
- Start date
PD for a substitute LC ?
Could someone please shed some light on priority date for substituted labor ? There have been many opinions in the forum but none seem conclusive.
Could someone confirm whether for a substitute labor case, the PD is from the original LC or the I-140 filing date ?
Could someone please shed some light on priority date for substituted labor ? There have been many opinions in the forum but none seem conclusive.
Could someone confirm whether for a substitute labor case, the PD is from the original LC or the I-140 filing date ?
fast_gc_seeker
Registered Users (C)
*** will this affect spouse 485? ***
Murthy.com says:
"This means that, as of January 1, 2005, anyone who is the beneficiary of a labor certification (or I-140 if a labor certification was not required) in the EB3 category filed on or after January 1, 2002, will not be permitted to file the I-485 or have a consular interview for an immigrant visa until the numbers move beyond this date"
I'm a citizen of India and my EB3 485 is under process. I've read it in some other thread that even dependents 485 will not be considered as result of
this retrogession. Is this true? will this affect spouse 485? Please let me know as I've to apply for spouse 485 ASAP.
Murthy.com says:
"This means that, as of January 1, 2005, anyone who is the beneficiary of a labor certification (or I-140 if a labor certification was not required) in the EB3 category filed on or after January 1, 2002, will not be permitted to file the I-485 or have a consular interview for an immigrant visa until the numbers move beyond this date"
I'm a citizen of India and my EB3 485 is under process. I've read it in some other thread that even dependents 485 will not be considered as result of
this retrogession. Is this true? will this affect spouse 485? Please let me know as I've to apply for spouse 485 ASAP.
Last edited by a moderator:
I-140 approved; I-485 pending... please help.
Please enlighten me. Per my Notice of Action forms received from USCIS, the following is my scenario:
I-140 (Approved)
Priority Date: Nov. 1, 2001
Receipt Date: Nov. 7, 2001
Notice Date: Dec. 17, 2001
I-485 (Pending)
Priority Date: BLANK
Receipt Date: Jan. 30, 2002
Notice Date: Jan. 31, 2002
* We originally filed our papers with the California Service Center. Per our online status, it says that on July 2004, our petition was transferred to the Los Angeles office. Then last Nov 2004, we used Infopass and found out that our case was now in our local office which is Santa Ana, California. *
Questions:
1) Any idea why our priority date in our I-485 is left blank? Is it because we carry the priority date of our I-140 petition and I-485 is just a follow-up petition?
2) In regards to the retrogression of priority dates, will our case be affected with this new rule? Is the I-140 priority date used or that of the I-485, which incidentally is left blank in our form.
3) For applicants with pending I-485, can they continously renew their EAD even if their priority date is after Jan. 1, 2002?
Thank you very much for any inputs you might share.
Please enlighten me. Per my Notice of Action forms received from USCIS, the following is my scenario:
I-140 (Approved)
Priority Date: Nov. 1, 2001
Receipt Date: Nov. 7, 2001
Notice Date: Dec. 17, 2001
I-485 (Pending)
Priority Date: BLANK
Receipt Date: Jan. 30, 2002
Notice Date: Jan. 31, 2002
* We originally filed our papers with the California Service Center. Per our online status, it says that on July 2004, our petition was transferred to the Los Angeles office. Then last Nov 2004, we used Infopass and found out that our case was now in our local office which is Santa Ana, California. *
Questions:
1) Any idea why our priority date in our I-485 is left blank? Is it because we carry the priority date of our I-140 petition and I-485 is just a follow-up petition?
2) In regards to the retrogression of priority dates, will our case be affected with this new rule? Is the I-140 priority date used or that of the I-485, which incidentally is left blank in our form.
3) For applicants with pending I-485, can they continously renew their EAD even if their priority date is after Jan. 1, 2002?
Thank you very much for any inputs you might share.
gcsoon2002
Registered Users (C)
try4gc said:
Old regulation 8 CFR 204.5, says that priority dates are alien based and not transferrable for LC substitution cases
(TL:VISA-173 6/27/96)
http://foia.state.gov/masterdocs/09FAM/0942053X2.PDF [see pg 1]
However the new regulation says PD is based on original LC date for substituted case and not based on I-140 filing date
(TL:VISA-313; 08-27-2001)
http://foia.state.gov/masterdocs/09fam/0940051N.pdf [see pg 6]
Thanks gcsoon2002. But today I got mail from state.gov regarding PD. Mine is Substitute Labor, I asked about my PD to them (state.gov). Any how I gave reply with your link, I am waiting for reply.gcsoon2002 said:
From: Consularkingst [mailto:consularkingst@state.gov]
Sent: Monday, December 20, 2004 3:30 PM
To: Rajnag.
Subject: Priority Date
Good afternoon:
Your priority date is the the date your I-140 petition was filed with the Department of Homeland Security. At this present time, visa numbers are available for all Employment based visa categories.
Jessica Adams
Immigrant Visa Unit
American Embassy
Kingston, Jamaica
Thanks
Rajnag.
LuckyBastard
Registered Users (C)
My 140 got approved based on a sub LC......
The Priority Date section on the approval notice states the date when the original LC was filed.
Does this mean anything....or still we cannot be sure of the PD for sub LC cases??????
The Priority Date section on the approval notice states the date when the original LC was filed.
Does this mean anything....or still we cannot be sure of the PD for sub LC cases??????
gc_mania_03
Registered Users (C)
i-485 Spouse
I thought since the wife's applicant is a derivative of my application, if I have already filed my I-140/I-485 , I can files my wife's petition even after January. Is my assumption wrong?
Cant she get her EAD then?
Can someone please throw some light on this.
-gc_mania_03
TheRealCanadian said:
I thought since the wife's applicant is a derivative of my application, if I have already filed my I-140/I-485 , I can files my wife's petition even after January. Is my assumption wrong?
Cant she get her EAD then?
Can someone please throw some light on this.
-gc_mania_03
TheRealCanadian
Volunteer Moderator
gc_mania_03 said:
Yes, that's incorrect.
Each I-485 application stands on its own. The fact that your I-485 application has already been filed is immaterial. If your (and therefore your wife's) priority date is not current as of 1/1/05, then she cannot file an I-485 or get an EAD or AP based on a filed I-485. She will also need to maintain valid non-immigrant status.
FYI, this situation would also be true if your I-485 was approved and then the dates retrogressed.
PD when using substitute labor
I am not sure if this true. But I found this on Sheela Murthy's website. It may clear some confusion on priority dates questions when using LC substitute.
***************************************************
Chat User : Hi, Muthyji. What is the priority date for a case using substitute labor? Is it the priority date of the original labor or the date of the I-140?
Attorney Murthy : Although, generally by law, the USCIS is supposed to give the date of the new I-140 filing, we have seen that they have been granting the PD from the original LC given for an earlier employee. So, although it may be possible to take advantage, the USCIS position is that their error does not guarantee the new substituted person may take advantage of something not allowed under law. So be prepared, even if the case has been filed, that it may not get approved if the USCIS realizes its error!
*******************************************************
I am not sure if this true. But I found this on Sheela Murthy's website. It may clear some confusion on priority dates questions when using LC substitute.
***************************************************
Chat User : Hi, Muthyji. What is the priority date for a case using substitute labor? Is it the priority date of the original labor or the date of the I-140?
Attorney Murthy : Although, generally by law, the USCIS is supposed to give the date of the new I-140 filing, we have seen that they have been granting the PD from the original LC given for an earlier employee. So, although it may be possible to take advantage, the USCIS position is that their error does not guarantee the new substituted person may take advantage of something not allowed under law. So be prepared, even if the case has been filed, that it may not get approved if the USCIS realizes its error!
*******************************************************
TheRealCanadian said:
RealCanadian,
I was told by my attorney that if I file my papers before Dec 28th then in January, my wife should be able to file EAD and Travel Document except I-485
? My attorney says since my wife is a dependent and since my case is already filed, even if the visa dates retrogress she should be able to get EAD and Travel Document
Please verify
Thanks
TheRealCanadian
Volunteer Moderator
webjockey said:
That's an interesting supposition. You are welcome to try it, but my estimate is that USCIS will reject the filing since her priority date is no longer current, no matter what you have done with your I-485.
TheRealCanadian
Volunteer Moderator
MA_Labor said:
There is no requirement that the priority date be current before the I-130 or I-140 is approved; that being said, USCIS might not be in any rush to get around to approving immigrant visa petitions for concurrent filers whose PDs are not current.