A priority date in the employment-based 1st, 2nd or 3rd preference can be maintained and used for any subsequent petitions in any of those categories, as long as the I-140 petition has been approved in the original case. This substitution of the priority date from one employment-based (EB) application to another is possible even if the EB petitions are sponsored by different employers, or are in different preference categories.

• For employment-based 2nd or 3rd preference category cases requiring a Labor Certification application (LC), the priority date is established at the date the labor certification is filed.

• For categories that do not require labor certification, the priority date is the date the Form I-140 is received by the USCIS.

An example of this scenario is when an employer sponsors an employee for the Green Card process and during the process the employee leaves to take a job at another company. If the employee leaves after the first company has obtained the I-140 petition approval, she/he must start the process over but can retain the original priority date. If the employee leaves the company before the I-140 petition has been filed, the employee leaves without the priority date, unless the first employer continues the process for the employee with the intention of the parties to continue employment after the Green Card is approved.

The proper time to claim the original priority date is at the filing of the subsequent I-140, or at the filing for adjustment of status (I-485) based upon the second I-140. A copy of the earlier I-140 approval notice is included with the filing, to prove entitlement to the earlier priority date. There is an exception to this rule. If the Bureau of Citizenship and Immigration Services (USCIS) revokes an I-140 approval due to fraud or misrepresentation, the priority date is lost and cannot be re-used.

 

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