FAQ: Claiming a priority date established by an earlier approved I-140

Question: If I have an I-140 that has been approved, can I keep that same priority date for my new I-140?

Answer: Yes. 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.

Question: What happens if my employer withdraws the approved I-140 petition and the USCIS then revokes it?

Answer: The law is clear, unless the USCIS revokes the petition for fraud or misrepresentation, you get to keep the priority date even if it is revoked for any other reason.

Question: But I have heard some people say that any revocation will result in the loss of the priority date?

Answer: 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of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation.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]

Question: If my priority date becomes current before my new I-140 is approved, may I file an I-485 and claim the earlier priority date?

Answer: Yes. If your new I-140 is pending, then you need to include copies of the earlier I-140 approval notice and the fee receipt for the I-140. You case will then be treated the same as a concurrent I-140/I-485. If your new I-140 has been approved, then you need to provide copies of the two approval notices with your I-485.

Question: What if I don't have a copy of the approval notice for my earlier I-140?

Answer: You must be able to reference the earlier approval so that the USCIS can see that it was approved and hasn't been revoked for fraud or misrepresentation. If you don't have a copy of the approval notice, you may tell them the file number (shown on both the receipt notice and the approval notice). With that file number, the USCIS can pull the original file (which they will do anyway) and confirm the approval.