INS Issues Guidance on Substituting Petitions in Pending I-485 Applications
Posted Jun 24, 2000

As part of the MurthyBulletin’s continuing series of articles providing guidance on the labor certification and Green Card process, we offer the following guidelines regarding retention of priority dates. For an explanation of priority dates in general, you may consult our earlier article “How Priority Dates Work” in the Green Card section of our new website, under labor certification and other Green Card issues.

Retention of Priority Dates

As many of you may be aware, for employment-based 2^nd or 3^rd 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 INS. A priority date in the employment-based 1^st, 2^nd or 3^rd 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.

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 INS revokes an I-140 approval due to fraud or misrepresentation, the priority date is lost and cannot be re-used.

Substitution of Immigrant Petitions in Pending Adjustment Applications

On May 9, 2000, Michael Pearson, Executive Associate Commissioner, Office of Field Operations, issued a Memorandum (“Pearson Memo”) on transferring Section 245 adjustment of status applications to new or subsequent immigrant visa petitions.

The Pearson Memo discusses what happens if the I-485 is already pending when the subsequent petition is approved. The Memo pointed out that a person can substitute an approved I-130 or I-140 Petition with a newly approved petition while the adjustment application is pending, as long as the priority date is current at the time the substitution is effected. According to the Pearson Memo this I-485 substitution procedure is available only within the same preference category -- a policy that appears to contradict prior INS guidance on this issue.

Further INS clarifications are needed. If the two petitions are in different preference categories, the person must wait to file the I-485 after the second I-140 is approved, because substitution would apparently not be possible in that situation. The option of substituting the I-140 approval to a pending adjustment application is only available up to the point at which the I-485 is finally adjudicated. The Pearson Memo points out that allowing such substitutions benefits the INS and the applicant, saving time and work for both parties.

While many of us were aware of the possibility of substituting a newly approved I-140 with a new employer -- for example, in a pending adjustment application -- the Pearson Memo provides additional information on this issue. The Law Office of Sheela Murthy has been assisting clients with such substitutions ever since INS indicated towards the end of 1999 that such a procedure was allowed.