(d) Priority Dates.
The priority date is used in conjunction with the Visa Bulletin issued by the Department of State (DOS) to determine when the beneficiary can apply for adjustment of status or for an immigrant visa abroad. Determining the correct priority date for an immigrant visa petition is very important. Of equal importance is making sure that the Form I-140 approval notice carries the correct date. Another USCIS office or DOS may use the information on the approval notice to make a determination on the beneficiary's eligibility to file an application for adjustment or for a visa. Issuance of an incorrect approval notice can create problems for USCIS, other DHS entities, consular posts, petitioners, and alien beneficiaries.
(1) 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of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation.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 successor in interest).
(A) Schedule A Labor Certifications. The priority date for a petition supported by a Schedule A designation, or for a petition approved for a classification which does not require a labor certification, is the date the Form I-140 petition is filed with USCIS.
(B) Individual Labor Certifications Filed with DOL Prior to March 28,2005: The priority date for a petition supported by a Form ETA-750 labor certification filed with DOL prior to March 28, 2005, is the earliest date the application for labor certification, Form ETA-750, was accepted by any office in the employment service system of DOL.
(C) Individual Labor Certifications Filed with DOL on or after March 28, 2005: The priority date for a petition supported by a Form ETA-9089 labor certification filed with DOL on or after March 28, 2005, is the earliest date the application for labor certification is filed with the ETA Processing Center.
(D) Re-filed Individual Labor Certifications During PERM Transition: The priority date for a petition supported by a Form ETA-9089 labor certification that was filed with DOL on or after March 28, 2005 as a re-filed labor certification application after a withdrawal of a previously filed Form ETA-750 will be the filing date that DOL specifies in Section “O.” of the Form ETA-9089. Please Note: As part of the implementation of the PERM labor certification system DOL is allowing U.S. employers who have not already had a job order placed by the SWA for labor certification applications that were filed prior March 28, 2005, to withdraw the pending Form ETA-750 labor certification application and re-file under the new PERM system. The new labor certification will be assigned a new priority date unless all of the elements relating to the job opportunity and the alien beneficiary on the newly filed Form ETA-9089 labor certification application are identical to the elements specified on the Form ETA-750 (with the exception of the prevailing wage determination.) DOL will examine the previously filed Form ETA-750 and compare it with the newly filed Form ETA-9089 to make that determination and will annotate the correct priority date in Section “O.” of the Form ETA-9089.
(E) Incorrect or Disputed Priority Date Assignments by DOL for Labor Certifications Filed with DOL on or after March 28, 2005: There may be instances where the petitioner indicates that DOL erred by assigning a new priority date on the Form ETA-9089 even though a request for the treatment of the newly-filed Form ETA-9089 as a re-file was requested by the petitioning employer. In other cases, Section O. of the Form ETA-9089 may be blank. In such instances, it is appropriate to request a corroborative statement or other evidence from DOL that clarifies what the correct priority date should be. USCIS adjudicators will not attempt to determine whether DOL’s decision to deny the re-file request and assign a priority date was in error, and assign a priority date that differs from the priority date annotated by DOL. These determinations are made by DOL.
(2) Effect of Denial of Petition on Priority Date.
If a Schedule A petition or a petition which does not require labor certification is denied, no priority date is established. In addition, no priority date is established by an individual labor certification if a petition based upon that certification was never filed and there is a change of employer (except in successor in interest cases).
(3) Priority Date Based on Earlier Petition.
If an alien is the beneficiary of two (or more) approved employment-based immigrant visa petitions, the priority of the earlier petition may be applied to all subsequently-filed employment-based petitions. For example:
Company A files a labor certification request on behalf of an alien ("Joe") as a janitor on January 10, 2003. The DOL issues the certification on March 20, 2003. Company A later files, and USCIS approves, a relating I-140 visa petition under the EB-3 category. On July 15, 2003, Joe files a second I-140 visa petition in his own behalf as a rocket scientist under the EB-1 category, which USCIS approves. Joe is entitled to use the January 10, 2003, priority date to apply for adjustment under either the EB-1 or the EB-3 classification.
(4) Conversion of Pre-IMMACT Petitions.
Petitions filed under the old third and sixth preferences were automatically converted to one of the new classifications when the provisions of IMMACT 90 went into effect. Priority dates established by the previously approved petitions may be applied to any petition filed under the new provisions.
If the application for labor certification was filed before October 1, 1991, a petition must have been filed by October 1, 1993, in order to preserve the date of the labor certification as the priority date. If the application for labor certification was filed before October 1, 1991, but not granted until after October 1, 1993, the petition must have been filed within 60 days after the date of certification to maintain the priority date. Otherwise the date the petition is/was filed with USCIS (or prior to March 1, 2003, the Service) will be the priority date.
