Establishment and Retention of EB Priority Dates

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Because employment based immigrants are subject to quota restrictions, the law provides for an orderly waiting list, based on the date that the first official step was taken to immigrate the alien. this date is the earlier of the date a labor certification was filed on the alien's behalf, or the date an immigrant preference petition was filed, if no labor certification is required. This date is known as the alien's priority date.

A priority date is not "perfected" until the immigrant preference petition is actually approved. Once a preference petition beneficiary receives a priority date, he or she may be able to retain it even if the preference classification changes. For example, some employment based immigrants are entitled to retain their EB priority dates even if they change jobs or switch classifications. Similarly, some family based beneficiaries are allowed to retain their priority dates if they automatically convert from one classification to another though marriage, age, or the naturalization of the petitioner.

Depending upon whether the alien beneficiary is qualifying through a family based or an employment based immigrant preference petition, the criteria for establishing a priority date are slightly different.

The specific regulatory provision (8 CFR 204.5) states:

"(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. (Amended 6/27/96; 61 FR 33304 )"

The USCIS regulations at 8 CFR 204.5(e) provides for the retention of a previously established priority date under the circumstances described below:

(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.

Some individuals have read this language to mean that any revocation results in a loss of the earlier established priority date. This interpretation is incorrect. The USCIS, in the Adjudicator's Field Manual, at Chapter 22.2(b)(5)(A)(5), makes it clear that only a revocation based on a finding of fraud or misrepresentation results in a loss of the priority date: 

(A) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successorship of interest). [Emphasis added]

This limitation is also explained in the Department of State's Foreign Affairs Manual at 9 FAM 42.53 Note 3.5:

Subsequent Petition in Employment-Based Classifications
(CT:VISA-1545; 09-27-2010)

a. Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a priority date accorded by approval of an employment-based first, second, or third preference petition is retained by the beneficiary for any other first, second, or third preference petition approved subsequently for the same beneficiary. In all cases, the beneficiary of multiple petitions is entitled to the earliest of the filing dates of the various petitions. [Emphasis added]

b. Subsequent petitions need not be from the same petitioner or for the same type of employment. However, where the applicant is no longer proceeding to work for the first petitioner, it would be reasonable to make inquiries to determine whether the first petition had been revoked. (See 9 FAM 42.53 Exhibit II, 8 CFR 204.5(e).)

c. A priority date established in the employment-based first, second, or third preference category is not transferable to employment-based fourth or fifth preference petitions or to a family-sponsored petition.

Clearly, not all revocations result in a loss of the earlier established priority date. For example, when an employer withdraws a petition filed on behalf of a current or former employee, the USCIS will revoke the I-140, but that revocation will not result in the loss of the established priority date.