teky said:
Guys,
I would really appreciate if somebody can answer this question:
I have applied for my labor certification in EB 3 category in April 2002. My Labor has been approved in August 2005 and my I -140 certified.
I have a US Masters degree and would like to know if I can re-file my labor from the same employer in EB2 with PERM.
I would not like to lose my priority date of April 2002.
Please let me know if this possible .
Thanks,
Teky
There is a good discussion on this in vermont 485 discussion forms
Here is the discussion about this
http://immigrationportal.com/showthread.php?t=189663
here are the points:
Rule of Priority Date Retention:
This rule is provided in Section 204.5(d) of the immigration
regulation as follows: 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. Under this rule, when an alien has a multiple approved petitions
with the same employer or different employers, the alien can use the
earliest priority date in filing I-485 application assuming that the
earliest priority date is "current" for him/her. For instance,
assume that a labor certification based I-140 was approved in May 1999 for EB-3 but because of the retrogression, he/she was unable to file
I-485 application. Assume also that same or different employer filed
another L/C and petition of EB-2 for him/her which has also been approved in September 2005. In October, EB-2 will also be retrogressed and the EB-2 visa number will not be available to him/her if he/she is an Indian or Chinese because of the low priority date of the second EB-2 I-140 petition approval. However, under the rule of priority date retention,
he/she can file I-485 in October 2005 using approved EB-2 petition
using the priority date of May 1999, provided that the 1999 EB-3
petition has been not revoked. This cross-transfer of the priority
date is available only among EB-1, EB-2, and EB-3. As will be explained
later, this priority date transfer is not allowed between
EB-1,EB-2,EB-3 and EB-4 or EB-5, or Family Based Immigrant Petitions. Rule of Transfer of Pending I-485 Application to Second Approved
Petition: This rule is clarified in so-called Pearson Memorandum in
2000, which basically stated that pending I-485 can be transferred
to the second approved petition, no matter what kind of petition the
second petition is. Assume that he/she filed EB-3 I-140 petition and
I-485 was filed in 2004 before the visa number retrogressed and
pending. Assume also that another immigrant petition of whatever
nature, including EB-1, EB-2, or EB-4, EB-5, Family-Based petitions,
is later filed and approved. In such case, he/she does not have to
refile I-485 application to use the second approved petition, provided that the first petition was not revoked and the visa number is current
for the second petition. In this transfer of I-485, priority date may or
may not be transferred depending upon the nature of the two
petitions. If the two petitions are in EB-1, EB-2, or EB-3, the priority date
will also be transferred. If the two petitions include EB-1/EB-2/EB-3 and Family Petition or EB-4 or EB-5, the priority date cannot be
transferred between these two petitions, even though the pending
I-485 application can be transferred between these two petitions. Simply
put, "transfer of I-485 between two petitions" means he/she does not have to refile I-485 application to use second petition, while the rule of
priority date retention defines the transfer of the priority date
among EB-1, EB-2, and EB-3.
