BIA Decision Brings Uncertainty to Priority Date Retention After I-140 Revocation

Many immigration strategies in employment-based cases rely upon the ability to retain the priority date between permanent resident (or, “green card”) case filings for the same individual. It is widely used in what is commonly known as upgrading between categories, as well as during changes of employer. The U.S. Citizenship and Immigration Services (USCIS) had been allowing this, even if the I-140 employer petition has been revoked (other than for reasons of fraud or misrepresentation). In a recent Board of Immigration Appeals (BIA) decision, however, the court saw things differently, raising questions about a possible policy shift with respect to porting the priority date (also known as retaining the priority date) to a new green card filing.

Priority Date Retention Broadly Permitted

As discussed in the MurthyDotCom NewsBrief, Considerations for EB3 to EB2 Upgrade (04.Feb.2014), it is fairly common for a foreign national worker to upgrade from an employment-based, third preference (EB3) position to one in the employment based, second preference (EB2) category. This strategy typically involves first obtaining an approved I-140 for an EB3 position and then, when being sponsored for an EB2 position, porting the earlier priority date from the EB3 case to the EB2 I-140. This generally applies even if the EB2 petitioner is a different company from the petitioner on the EB3 case.

This same strategy may be used when a foreign national worker makes a lateral move from one employer to another. For instance, if an H1B worker is sponsored by Employer A for an EB3 position and the I-140 is approved, this same priority date typically may be ported to a subsequent EB3 case filed by Employer B. This ability to retain a priority date once the I-140 has been approved is a key immigration benefit that can prevent a worker from having to wait many additional years for a green card following a change of position and/or employer.

Current Policy Typically Allows Retention, Even After I-140 Revocation

Priority date retention is only possible if the case results in an approved I-140. When this occurs, the priority date can usually be retained by the beneficiary for any subsequent employment-based green card case. This is permitted even if there is a change in EB category, job category, location, or any other similar variation.

But, what if the I-140 is approved and then revoked? The law allows the USCIS to revoke an approved I-140 for a variety of reasons. In fact, a petitioning employer may request that the USCIS revoke an approved I-140 at any time, without explanation or reason. This commonly occurs when a foreign national worker leaves the petitioner to move to a new employer. The applicable regulations appear to prevent the retention of priority dates if an I-140 is revoked for any reason. However, longstanding policy by the USCIS and Legacy INS has been that, even following a revocation of the I-140, the priority date still may be retained. The one exception to this, per the USCIS Adjudicator’s Field Manual (AFM), is when the I-140 is revoked by the government based upon fraud or willful misrepresentation.

BIA Decision Casts Doubt on Priority Date Retention Policy

A recent, non-precedential (i.e. non-binding, except for the parties in the case) decision by the BIA ignores this established government policy. In the case know as In Re Grace Estrellado, the beneficiary had an approved I-140 with a 2006 priority date. She then moved to a new employer and was again sponsored for a green card, this time resulting in an approved I-140 with a 2011 priority date. In the meantime, the initial I-140 was revoked by the USCIS at the request of her former employer. The beneficiary asked to port the 2006 priority date to the new I-140. However, the BIA held that the beneficiary was not eligible to retain the 2006 priority date because that I-140 had been revoked.

The BIA based this decision on a strict application of the regulation, making no reference to the AFM, which, as noted above, only prohibits priority date retention if the revocation is based on fraud or misrepresentation. In fact, the BIA did not even acknowledge that this decision is a dramatic change from standard USICS policy dating back years.

What this Could Mean for Your Green Card

The ability to retain priority dates is very important for many foreign nationals working in the United States. It provides vital employment flexibility and options. Fortunately, for the time being, there does not seem to be a widespread shift in policy. The Murthy Law Firm continues to request and obtain priority date retention benefits for clients on a routine basis. However, this BIA decision does raise concerns about the possibility of the USCIS instituting a major change that would negatively impact thousands of foreign national workers.

MurthyDotCom will continue to closely track this issue and report on any significant developments. Stakeholders who are encountering issues similar to those in the In Re Grace Estrellado case are encouraged to schedule a consultation with a Murthy Law Firm attorney.

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