Substitute labor and Priority date

B

bostonbuddy

Registered Users (C)
As Dept. of State assigns visa number based on PD, State dept's guidance may be the right one:

http://www.foia.state.gov/masterdocs/09FAM/0942053N.PDF

9 FAM 42.53 N3.7 Substituting Alien Beneficiary
(TL:VISA-284; 05-17-2001)
Once a labor certification has been approved, an employer may substi-tute another employee. Although the certification remains valid, the substi-tuted employee does not retain the original priority date, but rather is as-signed a priority date as of the date the employer requested the substitu-tion.
 
bostonbuddy said:
As Dept. of State assigns visa number based on PD, State dept's guidance may be the right one:

http://www.foia.state.gov/masterdocs/09FAM/0942053N.PDF

9 FAM 42.53 N3.7 Substituting Alien Beneficiary
(TL:VISA-284; 05-17-2001)
Once a labor certification has been approved, an employer may substi-tute another employee. Although the certification remains valid, the substi-tuted employee does not retain the original priority date, but rather is as-signed a priority date as of the date the employer requested the substitu-tion.
Click to expand...


9 FAM 40.51 N4.5 Substitution of Beneficiary on Approved Labor Certification
(TL:VISA-313; 08-27-2001)
If the INS service center determines that a substituted alien meets the requirements set forth in the original certification as of the date it was filed with the state employment office and the Form I-140 Immigrant Petition for Alien Worker, is otherwise approved, the petition shall be approved and processed like any other Form I-140 petition. The priority date shall be the date on which the labor certification was filed with any office within the employment service system of the Department of Labor.



The later has a recent date than the former. So do you think the the later one has precedence over the other. Comments please
 
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!

ref: http://www.murthy.com/print/chat1213_P.html
Click to expand...
 
Does I14o approval notice contains whether it is approved based on original labor or substituted labor ?

My employer does not give me a copy of I140 approval so I could not verify myself.
 

How can it be determined from a 485 application whether the applicant is using an original labor or a substitute?
 
You must log in or register to reply here.
Top