27 Jan 2016 It could be possible to retain and transfer your old employment-based priority date
If, years ago, you were petitioned by an employer, and that employer’s petition (Form I -140) was approved, but you never received a green card from that case, a new employer could petition you, and you could possibly have the old priority date transferred to the new case. This could save years of waiting time for a green card, as you could utilize the old priority date from the first employer’s case. In addition, it does not even need to be the same type of job!
For example, a person was petitioned as a caregiver in 2000, and their I-140 was approved. However, before the person could adjust status, the employer went out of business, and the case was never concluded. Years later, in 2015, the person had a new employer who will petition them as an accountant. Of course, they will still need to file a new labor certification application (PERM) and have it certified by the Department of Labor, and have a new I-140 filed and approved by USCIS for an accountant. However, they could then have the old 2000 priority transferred to the newly – filed Form I-140.
Even though the USCIS is currently processing cases with 2007 priority dates, if a person is able to retain and transfer their older (or earlier) priority date, they would be immediately eligible to file for adjustment of status and get a green card, instead of waiting years for the later priority date to become current! The regulation states that a “petition approved on behalf of an alien. . . accords the alien the priority date of the approved petition for any subsequently filed petition for any classification. . . for which the alien may qualify.” If a person has several approved petitions, the person is entitled to the earliest priority date. (Note: transferring of priority dates in this manner applies only for employment based petitions; not for family based petitions.)
If you have a previously approved employment – based petition, and you believe you may be eligible under this regulation, you should seek the advice of an attorney, who can evaluate your situation, and determine your eligibility. I also want to caution you that there are other requirements as well, such as if you are out of status, you may still need the benefit of section 245(i)– if your priority date was after April 30, 2001. In addition, if your previous petition was revoked or denied, you may not be eligible to transfer the priority date to another petition. However, if your situation qualifies, you could save years of waiting time for a green card by retaining and transferring an older employment – based priority date.
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