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Priority Dategp111 said:
Found this document on USCIS site, It is dated 1995, Is it still valid???
http://uscis.gov/lpbin/lpext.dll/inserts/fr/fr-12559/fr-14721/fr-15576?f=templates&fn=document-frame.htm
Following the enactment of IMMACT, the Service issued a proposed rule which provided that the priority date for an employment-based petition would be the date of filing an employment-based petition with the Service. See 56 FR 30703-30714, July 5, 1991. After receipt of comments to the proposed rule, the Service decided to continue the established rule on assignment of priority dates, which set the priority date as the date the office within the employment service system of the Department of Labor received the application for labor certification. See 56 FR 60897-60913. The Service also decided to add a new provision which allowed an alien to retain the priority date of any employment-based petition which the Service approved on his or her behalf, unless it is revoked. See 56 FR 60905; 8 CFR 204.5(e).
Before IMMACT became effective, the Department of Labor permitted an employer to substitute qualified labor certification beneficiaries after issuance of the labor certification. The petitioner could return the labor certification to the certifying officer and request that another beneficiary be substituted. See Employment and Training Administration, Technical Assistance Guide No. 656, p. 105. In implementing IMMACT, the Department of Labor eliminated substitution of labor certification beneficiaries. See 56 FR 54920-54930; 20 CFR 656.30(c)(2). The Department of Labor determined that substitution of labor certification beneficiaries was unfair to U.S. workers and other aliens seeking to immigrate, was subject to fraud and abuse, and constituted a significant administrative burden. See 56 FR 54926. In 1994, the United States Court of Appeals for the District of Columbia Circuit enjoined enforcement of the Department of Labor's regulation precluding substitution of labor certification beneficiaries, based on the Administrative Procedure Act. See Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994). As a result of this decision, employers may request substitution of labor certification beneficiaries. In light of the court's decision, the Service has reconsidered its regulations on assigning priority dates.
The Service has concluded that it is unfair to other aliens who seek to immigrate to the United States on employment-based petitions if the substituted alien gains the priority date of the original alien beneficiary, since those aliens would receive a later priority date than a substituted alien. Currently, in certain employment-based immigrant categories, such as the third preference "other worker" category, an alien who benefits from a labor certification substitution can immigrate ahead of another alien who has been waiting for an immigrant visa for several years. Not only would allowing substituted aliens to receive the earlier priority date be unfair to other intending immigrants, it would also be contrary to the Service's policy of assigning a priority date to the alien rather than to the employer (see 8 CFR 204.5(e)).
Providing a priority date based on an employer's substitution of a labor certification beneficiary also carries the potential for fraud and abuse. Continuing this practice may encourage the creation of a market for labor certifications, particularly in categories in which there is a lengthy wait to receive an immigrant visa. For instance, it is conceivable that the original alien beneficiary might be induced to engage in the fraudulent practice of selling his or her status as a labor certification beneficiary to a substituted alien.
The Service, therefore, proposes to set the priority date for an alien who has been substituted for another alien on a labor certification as the date the employer requested the substitution. This proposed rule will be fair to other aliens who apply under employment-based immigrant categories, and would be consistent with the Service's policy of according a priority date to the alien rather than to the employer, thereby eliminating an inducement to commit fraud.
Retention of Employment-Based Priority Dates
The Service's current regulation provides that an alien retains the priority date of any petition filed under the first, second, or third employment-based categories which the Service approved on his or her behalf. See 8 CFR 204.5(e). A petition revoked under sections 204(e) or 205 of the Act, however, will not confer a priority date. Section 205 of the Act permits the Attorney General to revoke an approved petition for good and sufficient cause. The regulations governing revocation distinguish between automatic revocation and revocation on notice. See 8 CFR part 205. For employment-based petitions, automatic revocation occurs upon invalidation of a labor certification, death of the petitioner, written withdrawal by the petitioner, or by dissolution of the petitioner's business. See 8 CFR 205.1(c). The Service has determined that the current regulation is difficult to administer, because the Service is not usually notified of actions which may result in automatic revocation. In addition, the regulation treats those aliens who fall under the automatic revocation provisions differently from those aliens whom the petitioner no longer seeks to employ for various reasons. For example, under the current regulation, if the petitioning employer dissolves or goes out of business, the petition is automatically revoked and the beneficiary loses his or her priority date. See 8 CFR 205.1(c)(4). However, if the petitioning employer remains in business but later decides not to offer the position to the beneficiary, the beneficiary can use the priority date for any subsequent petition filed on his or her behalf. Accordingly, the Service proposes to amend 8 CFR 204.5(e) to state that only a petition revoked on notice pursuant to 8 CFR 205.2 for fraud or misrepresentation will not confer a priority date for any subsequently filed employment-based petition. This change will allow for consistency and fairness in assignment of priority dates and easier administration for the Service.
