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Form I-140 Priority Date Retention for Subsequent Employment-Based Petition

Hi William,

Form I-140 petition based on the PERM Labor Certification has been approved, but I need to wait long time to file Form I-485 petition to get my Green Card, due to the immigration visa availability. Can I file Form I-140 in another category, such as in EB2 NIW - National Interest Waiver, or in EB1-Extraordinary Ability, but also keeo my I-140 Priority Date?


If a beneficiary's Form I-140 petition was approved, then beneficiary's second or third Form I-140 petition in difference preference category, such as EB1-Extraordinary Ability, EB1 Outstanding Researcher or Professor, EB1 Multinational executive or manager, or EB2 NIW (National Interest Waiver), may retain the priority date of the approved first petition for any subsequently filed second or third category employment-based petition.

The priority date of Form I-140 petition that requires a PERM Labor Certification is the date the underlying labor certification was officially acknowledged as received by the Department of Labor. The priority date of Form I-140 petition that does not need a Labor Certification, such as EB1 and EB2 NIW petition, is the date the Form I-140 was filed with the U.S. Citizenship and Immigration Services.

In order to apply for permanent resident status, the priority date of the beneficiary's approved Form I-140 petition must be current under the visa bulletin published by the U.S. Department of State. Depending on the petition's preference category and the beneficiary's country of chargeability, the beneficiary may sometimes have to wait years for the Form I-140 priority date to become current and therefore, a retained priority date for a subsequently filed Form I-140 petition may significantly reduce the waiting time in applying for an employment-based green card.

Priority date retention is particularly advantageous to a beneficiary of an approved I-140 petition who intends to move to a new sponsoring employer as it may speed up the immigration process. The rule also benefits Form I-140 beneficiary in a retrogressed category who, through the passage of time, no longer has an open job offer from the original I-140 petitioner by the time the priority date becomes current, but subsequently obtains a new I-140 sponsor.

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