Priority Date Retention for I-140 Approvals
Many individuals face prolonged waits before they can submit their green card applications, even after obtaining I-140 approvals. In certain situations, individuals may need to leave their original I-140 petitioner and seek a new sponsor to file a new I-140 on their behalf. The critical question that arises is whether they can retain the priority dates from their previous I-140 approvals.
8 CFR 204.5(e)
The short answer to the above question is yes. The relevant regulation is 8 CFR 204.5(e)(1) which provides:
“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 section 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 approved petitions under section 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date.”
Therefore, individuals with prior I-140 approvals can retain their priority dates for new I-140 filings. This is true even when there is a change in I-140 classifications. Unless USCIS revokes the old I-140 approvals due to fraud or misrepresentation of a material fact, the original priority dates can be retained for subsequent I-140 filings.
Examples of Priority Date Retention
As mentioned above, retaining the old priority date is possible even when there is a change in the I-140 classification. For instance:
An employee with an approved I-140 for EB-2 classification can downgrade to EB-3 classification while preserving the priority date.
Similarly, an employee with an approved I-140 for EB-2 classification can maintain the priority date when filing a new I-140 for EB-1A classification, which allows for self-petition.
Conclusion:
Retaining priority dates from old I-140 approvals offers flexibility to individuals navigating the immigration process. This regulation allows for a smoother transition when pursuing new I-140 filings, even with changes in classification. It is a valuable benefit that provides individuals with more options as they progress toward obtaining a green card.
