Retaining Priority Date in Multiple I-140 Petitions
By Reuben S. Seguritan
May 14, 2014
Every fiscal year a limited number of immigrant visas are made available for each preference category. If the visa demand for a particular category is excessive and could not be satisfied by the number of visas allotted each year, the category is oversubscribed.
The cut-off date indicated in the visa bulletin released by the Department of State each month is the priority date of the first visa applicant who could not be reached within the limit. A visa number is immediately available to an applicant whose priority date is before the cut-off date.
The cut-off date for a particular category may advance, remain unchanged or even retrogress depending on the visa demand.
The June 2014 Visa Bulletin shows that the third preference employment-based (EB-3) cut-off date for the Philippines is January 1, 2008 while the cut-off date for all other countries except India and China is April 1, 2011. The second preference employment-based (EB-2) preference remains current for all countries except China and India.
A Philippine national, for example, who is waiting under the EB-3 category must have a priority date earlier than January 1, 2008 in order to be allotted a visa number. If his priority date is not yet current and he obtains additional education or experience to qualify under the EB-2 category, an employer may request the USCIS to classify the alien beneficiary under this visa category. Since the EB-2 category for the Philippines is current, a number is immediately available to him.
A new I-140 petition for the alien beneficiary with a DOL approved labor certification is filed to request a new visa classification.
An employer who files a subsequent I-140 petition must make sure that the beneficiary is qualified for the new category and that the initial I-140 petition is not revoked or withdrawn. He must also include a copy of the prior approval notice containing the priority date and the approved labor certification.
Under the law, the alien beneficiary with an approved I-140 petition retains the priority date of the petition when a new I-140 is subsequently filed on his behalf. The new I-140 may be filed by the same employer or a different employer. The priority date is the date the labor certification is filed and if a labor certification is not required, as in the case of Registered Nurses and Physical Therapists, the date the I-140 petition is filed.
Employers may simultaneously file EB-2 and EB-3 I-140 petitions for an alien beneficiary who is eligible under each requested visa category.
If the priority date for the requested visa category is current and the applicant is already in the United States, the I-140 petition may be filed concurrently with the adjustment of status application.
If the subsequent I-140 petition is approved and the applicant has a pending adjustment of status application, the applicant may request the USCIS to transfer the newly approved I-140 petition to his pending I-1485 application. The applicant must make a request in writing. No new form or fee for the adjustment of status application is required.