A priority date is very important for employment-based immigrant categories with extensive backlogs. Priority dates determine when visas for these categories are available for aliens seeking legal permanent residency in the United States based on the earliest date that they declared their intent to seek permanent US residency. The earlier a priority date is, the earlier an alien can submit an I-485, the last step in receiving a Green Card. Thus, it is important to know how an individual’s priority date is established and how to maintain that priority date during the often long Green Card process.

Just as an example of the importance of a priority date we can look at the Visa Bulletin for August 2012. For EB-2 petitions the cutoff date in August 2012 is January 1, 2009 for all countries except China (mainland) and India. Only aliens who officially declared their intent to seek permanent residency on or before January 1, 2009 could apply for a Green Card in August 2012. This means for over three and a half years an alien would be waiting to even apply for a Green Card. Three and a half years is a long time, and depending on the employment based preference that an alien is applying for or their place or origin the wait can be a lot longer. So what happens if in the time between initially declaring intent to reside permanently in the US and receipt of a green card an alien decides to change employers or even job positions? What happens to a priority date when employment plans change?

Establishing a Priority Date for PERM based EB-2 and EB-3 positions

Most EB-2 (except for National Interest Waivers) and EB-3 based permanent resident petitions require prior labor certification (LC) to show that 1) there are not sufficient able, willing, and qualified US workers available to fill a PERM position and 2) that the hiring of an alien for the position will not adversely affect the wages and working conditions of similarly employed US workers.

If a PERM LC is approved it will be valid for 180 days from the date of approval. The date that an approved PERM application was filed will establish the priority date for an alien. Even though the PERM filing date establishes what the priority date will be, such a priority date will not remain valid unless an I-140 form is filed within an LC’s original 180 day validity period.

Examples:

Company A files a PERM petition for alien beneficiary Smith on 7/17/2012. The PERM LC is eventually approved and Company A receives notice of approval. Beneficiary Smith’s potential priority date will be 7/17/2012. However, Company A files an I-140 for Smith over 180 days after the approval of the LC. Even though Smith’s priority date COULD have been 7/17/2012, since an I-140 was filed outside of the LC’s validity period Smith does not have a priority date and will have to get Company A to start the Green Card process all over again.

Company B files a PERM LC for alien beneficiary Lee on 7/4/2006. The PERM is approved on 9/4/2006 and thus Lee has a potential priority date of 7/4/2006. Company B files an I-140 petition on behalf of Lee on 10/4/2006 (within the LC’s 180 day validity period) but it is denied. Lee can still potentially secure her 7/4/2006 priority date in the future. A new I-140 will have to be filed on behalf of Lee to continue the Green Card process, but the LC for Company B’s position will remain valid into the future. After addressing the reasons for denial of the first I-140, Company B files a new I-140 on 1/1/2007. This I-140 is approved. Since the approval was based on Company B’s LC with a filing date of 7/4/2006, Lee now has a secured priority date of 7/4/2006, even though the first I-140 was denied.

Maintenance of Priority Date with New Employers

An LC is only valid for the alien AND the position for which it was filed. An approved LC cannot be used by another employer, another alien, or for another position. However, the priority date established by an LC can be used by an alien seeking employment from another employer. As discussed above, an LC which is filed in support of an approved I-140 confers to the alien a secured priority date based on the date of LC filing. This priority date can be used by the alien even if another LC is filed on his/her behalf.

Example:

Company C files a PERM for alien beneficiary Jones on 5/7/2008. The PERM LC is approved. Company C files an I-140 for Jones within the LC’s original validity period and it is also approved. Thus, Jones has a priority date of 5/7/2008. While waiting to file an I-485, Jones finds a better employment opportunity with Company D. In order to sponsor Jones for a green card, Company D will have to file its own PERM and I-140 petitions. Company D gets a new approved PERM and files a new I-140, which is also approved on 10/12/2010. Even though Jones is now being petitioned for based on employment with a different employer, he can still use the priority date established by Company C’s earlier PERM filing. Jones maintains his 5/7/2008 priority date regardless of the fact that a new, separate LC was filed on his behalf by a different employer.

It is important to note that to maintain the priority date of a prior LC/I-140 approval it is not necessary that the new employment opportunity be similar or related. For instance, Employer A could file an approved PERM LC and subsequently an approved I-140 for an alien for the position of junior grocery bagger. Then, Employer B files approved PERM LC and I-140 petitions for the alien for the position of chief neurosurgeon. Regardless of the fact that these two positions are wildly different in duties and requirements, the alien will still be able to maintain the early priority date based on prospective employment as a cashier.

Moving From EB-3 to EB-2 and Keeping the Earliest Priority Date

A situation of moving from EB-3 to EB-2 preferences is similar to the above example of the positions of cashier and neurosurgeon, although less extreme. EB-3 positions are professional and skilled positions requiring a bachelor’s degree or 2 years of experience respectively. Most PERM related EB-2 positions require an advanced degree or, in the alternative, a bachelor’s degree plus 5 years of post graduation experience. So the difference between a Master’s degree and a Bachelor’s degree is not as huge as that between a neurosurgeon and a cashier, but they are still quite distinct.

With potentially long waits for visa availability (EB-3 usually has a longer wait than EB-2 by roughly 5-8 years) it is possible, and even likely, that some aliens who qualified for EB-3 at the beginning of a Green Card process would come to qualify for EB-2 status before the process concluded. However, as mentioned above, an LC is only valid for the position for which it was filed. So if an employer submits an approved PERM petition for an alien beneficiary with EB-3 qualifications, this LC and subsequent I-140 CANNOT be used to support an EB-2 application. But, an EB-3 priority date CAN be used as the basis of a new EB-2 petition. Just like when changing employers, changing employment-based preference groups will require a new PERM application as well as a new I-140 submittal.

Example:

Employer B files a PERM and, after LC approval, an I-140 for alien beneficiary Wong. The position being petitioned for only required a Bachelor’s degree, so it will be an EB-3 position. Visas will likely not be available to EB-3 status aliens with Wong’s priority date until 10 years in the future. After 7 years of waiting for visas to become available, Wong has gone to school and received a master’s degree. With a master’s degree Wong can qualify for an EB-2 position, which would potentially mean she could apply for a permanent resident visa upon approval of the EB-2 I-140. Employer B files a new PERM and a new I-140 for a position requiring an advanced degree. After these petitions are approved Wong can maintain her priority date based on EB-3 status and seek an EB-2 visa (which usually has an earlier cutoff date).

Revocation of an Approved I-140

For all of the examples listed in the above discussion of maintaining priority dates for EB-2 and EB-3 petitions, is should be noted that there is a situation where previously secured priority dates can be revoked. If a previously approved LC or I-140 is revoked due to fraud or misrepresentation then the priority date attached to these petitions will no longer be valid. This is an extreme case and, in reality, experienced immigration attorneys would not advise a petition to advance far enough in the process for revocation based on fraud to be a problem.

Conclusion

The Green Card process is for prospective employment, and just because the first step towards permanent residency started with one employer does not mean that an alien has to commit to any one employer or position in order to maintain his/her priority date. Even if new petitions and applications are filed on behalf of an alien beneficiary that are in no way related to an earlier approved I-140, an alien will still maintain their earliest priority date.

This does not mean that USCIS will automatically recognize the earliest priority date for an alien with multiple petitions. An experienced attorney is necessary not only to navigate the process of multiple petitions and maintenance of priority date, but also to ensure that once a priority date is established and secured it is recognized by USCIS for all future filing related to an alien. Such attorneys will also know the specifics of EB-2 and EB-3 filing to be able to always strive for the status with the shortest wait and most current cutoff date.

To plan for the future and have an idea of unforeseen circumstances arising during the Green Card process it is advised that potential beneficiaries with immigrant intent contact a well practiced immigration attorney. Not all aliens will experience a change in outlook while waiting for visa numbers to become current with their priority date. But for those aliens that do have a change in situation, whether the change be fortuitous or a setback, the options to address these changes while maintaining a beneficial priority date will be easily answered by an attorney with immigration expertise.

(Updated 10/2/2012 by AD)

References:

USCIS Memo: June 1, 2007 (Neufeld Memo)
USCIS Adjudicator’s Field Manual: Chapter 22.2(b)(3)(F) and (d)
Code of Federal Regulations: 8 CFR § 204.5(d)-(e)
Code of Federal Regulations: 20 CFR § 656.30(b)-(d)
DOS Foreign Affairs Manual, Volume 9: (9 FAM 42.53, Notes)

For more information on PERM Labor Certification, please visit our library on PERM Labor Certification and our recent PERM articles.