This is how I see it
I studied this issue back in the 1990's and have revisited my notes.
Folks there is always someone who knows something better than another lawyer. In my opinion, in labor substitution cases, the law should be that for filing 485/Visa Bulletin purposes, the PD is the date of filing the I-140 . But beacause of the strange (and good for us) language used in AC21, for 7th year extensions, the date of filing the Labor Cert is used. Also, I am aware that CIS has been approving cases otherwise, but their regs point in the opposite direction.
By the way, CIS Regulations 8 CFR Section 204.5(e) (which may or may not have application to LCert substitution cases - I think it does) states that "A priority date is not transferable to another alien."
(e) Retention of section 203(b)(1), (2), or (3) priority date. 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.
However, INS has given instructions contrary to their regs. So, it appears so far that CIS has been following the Crocetti memo (right or wrong):
See this link
http://www.immigration.com/newsletter1/submemoins.html
Note: This memo referes to subscetion (d) of 8 CFR 204.5 (again, which does not refer to substitition)
d) Priority date. The priority date of any petition filed for classification under section 203(b) of the Act which is accompanied by an individual labor certification from the Department of Labor shall be the date the request for certification was accepted for processing by any office within the employment service system of the Department of Labor. The priority date of any petition filed for classification under section 203(b) of the Act which is accompanied by an application for Schedule A designation or with evidence that the alien's occupation is a shortage occupation within the Department of Labor's Labor Market Information Pilot Program shall be the date the completed, signed petition (including all initial evidence and the correct fee) is properly filed with the Service. The priority date of a petition filed for classification as a special immigrant under section 203(b)(4) of the Act shall be the date the completed, signed petition (including all initial evidence and the correct fee) is properly filed with the Service. The priority date of an alien who filed for classification as a special immigrant prior to October 1, 1991, and who is the beneficiary of an approved I-360 petition after October 1, 1991, shall be the date the alien applied for an immigrant visa or adjustment of status. In the case of a special immigrant alien who applied for adjustment before October 1, 1991, Form I-360 may be accepted and adjudicated at a Service District Office or sub-office.
Bottomline, so far it is working. Why should we rock the boat.
I do not know if this position will ever be revised.
