PD CANNOT be ported if earlier employer withdraws old I-140
The law is clear:
8 CFR 204.5(e) states:
"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." (Emphasis added).
This regulation says a priority date will not be retained for a petition
revoked under section 205 of the Act. Section 205 of the Act states:
"The Secretary of Homeland Security may, at any time, for what he deems to
be good and sufficient cause, revoke the approval of any petition approved
by him under section 204. Such revocation shall be effective as of the date
of approval of any such petition."
This encompasses revocation for any reason, not just for fraud or willful
misrepresentation. The regulations interpreting INA 205 further state, at 8
CFR 205.1(a)(iii)(C) that an I-140 petition shall be automatically revoked
"Upon written notice of withdrawal filed by the petitioner, in
employment-based preference cases, with any officer of the Service who is
authorized to grant or deny petitions."
Thus, under the law and regulations, when an employment-based I-140
petitioner withdraws an I-140 petition because the beneficiary no longer
works for him or her, USCIS automatically revokes the petition which
triggers 8 CFR 204.5(e), stating that the revoked petition does not confer a
priority date.
