All Priority date transfers and issues discussed here

[tom]

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[balu_g]

tom, I posted this already in another forum. I reposted here because it is more relevant here. I found this in murthy.com's chat archive:-

Chat User : Thanks in advance! Can the priority date be transferred from an EB3 case to an EB2 case if the I-140 was approved under EB3?

Attorney Murthy : Yes, a PD from any earlier employment-based case is allowed to be transferred over to any other EB case in the future. So this is useful, but such a transfer of the PD is only possible after the I-140 petition has been approved in the earlier case, even if the employer later uses that earlier LC or revokes that I-140 petition for another employee when the employee leaves that employment! So it is useful to keep evidence of that earlier I-140 approval in your name to be able to request the transfer of the earlier PD for a future case!

http://murthy.com/chatlogs/ch100305_P.html

I have also read that somewhere in immigrationportal.com. I have to research on this. I will try reading 8 C.F.R. § 204.5(e), but this is little hard for me to comprehend. I will also ask my lawyer again.

[balu_g]

Hi tom, I have sent a mail to my lawyer regarding this. I hope he gives me a clear reply.

[arouncoumar]

Differing opinion from same Murthy chat. Are they confused themselves or changed their stand. This one is the latest.

Chat User : Can one use the EB3 I-140 (approved) PD to file the EB2 case with a different employer?

Attorney Murthy : Yes, that is certainly possible and is done fairly often. That earlier PD can be transferred to any employment-based (EB) filing later on, as long as the earlier I-140 petition is not revoked for fraud or revoked by the employer. Even after revocation of the I-140 petition, it is often possible to use that earlier PD, as long as a request is made in writing by quoting the regulation with the later-filed I-140 petition, filed by the new employer.

http://www.murthy.com/chatlogs/ch040306_P.html

[balu_g]

Originally Posted by arouncoumar

I-140 petition is not revoked for fraud or revoked by the employer

I know that it should not be revoked for fraud. If you are in a reputable concern you dont need worry about this. But I dont understand the second part because I know LC and 140 are employers property and only they can revoke them.

Originally Posted by arouncoumar

Differing opinion from same Murthy chat. Are they confused themselves or changed their stand. This one is the latest.

Chat User : Can one use the EB3 I-140 (approved) PD to file the EB2 case with a different employer?

Attorney Murthy : Yes, that is certainly possible and is done fairly often. That earlier PD can be transferred to any employment-based (EB) filing later on, as long as the earlier I-140 petition is not revoked for fraud or revoked by the employer. Even after revocation of the I-140 petition, it is often possible to use that earlier PD, as long as a request is made in writing by quoting the regulation with the later-filed I-140 petition, filed by the new employer.

http://www.murthy.com/chatlogs/ch040306_P.html

[arouncoumar]

Its simple. You are dependent on previous employer i.e you can lose your PD if u move to a new employer and they plan to revoke it. Basically, you're at their mercy.

[vparam]

Interesting thread. ...

I was wondering if this is applicable even if the labor is substituted. My friend has a substitued labor with the 140 approved. Now he plans to join my company. Can he take advantage of the approved 140 priority date?

Any input and links regarding the same is appreciated.
Thanks

[balu_g]

Guys, Send this link to your lawyers and ask them to interpret it correctly. I guess none of us here are lawyers (mostly IT, Business and Doctors).

204.5

I sent this to my lawyer already. But he is busy with H1B filings. He said he will reply to me in a couple of weeks.

This information is valuble for PD retention until retro is cleared.

[v2neha]

Here is one more article related to this discussion of retaining old PDs. (found it on immigrationportal.com). This one says that EB categories do not matter as long as they are 1, 2 or 3 and not 4 or 5. Here’s an excerpt from page 5 of the linked article.



9 FAM 42.53 N3.6 Subsequent Petition in Employment-based Classifications

(TL:VISA-173; 11-10-1997)

a. Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a priority date accorded by approval of an employmentbased 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.

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

http://foia.state.gov/masterdocs/09FAM/0942053N.PDF

[Desi Unlucky]

Following is attorney James A. Bach's interpretation at
http://www.immilaw.com

Extract from his article (http://www.immilaw.com/Newsletters/2...ty%20Dates.htm)

What if the employer who submitted the first I-140 withdraws it before the second one (filed by another employer) is approved?
Even in that case, the employee may still be able to use the earlier priority date. Although the regulation states that the priority date is lost if the I-140 is revoked, a 2005 USCIS Memo (see page 6 of the Memo on the USCIS website) states that the priority date is lost only if the I-140 is revoked because of fraud or misrepresentation. Often an employer will withdraw an approved I-140 when the employment ends in order to use the approved labor certification for another employee. The USCIS Memo suggests that even in that case, the original employee can still use the priority date (even though the employee who is substituted into the approved labor certification also gets to use that priority date).

Link to the 2005 memo he referred to. See page 6 Determining the Priority Date
http://www.uscis.gov/graphics/lawsre...H1B_092305.pdf

[san_visa]

Originally Posted by vparam

Interesting thread. ...

I was wondering if this is applicable even if the labor is substituted. My friend has a substitued labor with the 140 approved. Now he plans to join my company. Can he take advantage of the approved 140 priority date?

Any input and links regarding the same is appreciated.
Thanks

I am in the same situation........I am using LC substitution (EB3) and waiting for I-140 approval. I am thinking of changing my job, the new employer is willing to file EB2 can I transfer the PD from substituted Labor ?

Thanks,
San

[yamkara]

A bit confused about the transfer of an approved I140 from EB3 classification to EB2 classification. Please could someone clarify the below:

During the LC the wages are determined upon which then the I140 is approved. If that is the case then how can it be transfered from an EB3 category (where one would expect lower wages) to an EB2 category (wages and experience and educational requirements are higher).

Thanks

[zoso]

Guys:

A company is trying to lure me to join them by saying they have a Spare Labor PD that I can use if I join them!!

Is this legal, can they really transfer someone elses Labor PD onto me??

All replies are appreciated.

Thx,
ZOSO

[god_bless_you]

on immigration portal forums previously
we discussed about varirous aspects to consider for a substitute labor
please check at
http://www.immigrationportal.com/sho...d.php?t=123495

[vav]

Here is my story.
Our current employer has filed my 485 on mid August 2006, using my old PD(OCT 2000 EB3) from my previous employer derived from my old I140 which was approved and then withdrawn and later substituted by my previous employer.
We didn't even have the copy of the old approved I140 to show the proof.
My previous employer refused to share it with me. Anyhow, I had a letter USCIS mentioning my old I140 was approved and then withdrawn by my old employer. We have used this INS letter and a letter from my previous employer mentioning my labor and I140 was filed and then approved for our proof of old I140 approval.
When I left my previous employer in 2001, my previous employer's immigration department had emailed me in 2001, saying that I get only the PD when I leave the company, nothing else. Hence I am believing, this is not a new law. It is coming to limelight because of the retrogression.
My current I140 was filed with a substituted labor of someone in the current company. I will keep posted to this thread about my case.
My two employer's immigration department is of the view that PD gets attached to the migrant as soon as I140 is approved unless it is revoked for fraud.