Gaining and Losing a Priority Date in Employment-Based Green Card Cases

A foreign national seeking to become a lawful permanent resident of the United States (i.e., a “green card holder”) typically should be familiar with the concept of a priority date. For all employment-based (EB) preference categories, a foreign national’s priority date is critical, as it determines when the individual can file an adjustment of status application (form I-485) and when it can be approved; or, if the case is filed for consular processing, it determines when the immigrant visa may be issued. So, it is helpful to understand how a priority date is established and in what situations that priority date may be retained or lost. Note that this MurthyDotCom article focuses solely on the employment-based first, second, and third preference (EB1, EB2, and EB3) categories.

Establishing the Priority Date and Determining What Date is Assigned

The employment-based priority date is established when the immigrant petition (form I-140) is approved. The priority date assigned depends on the type of case. For PERM labor certification (LC) cases, the priority date is based on the date the case was filed with the U.S. Department of Labor (DOL). If the EB case was filed in a category that does not require a PERM LC, then the priority date assigned is the date the I-140 was filed with the U.S. Citizenship and Immigration Services (USCIS).

Keeping and Losing the Priority Date

Per the regulation that has been in effect since 17.Jan.2017, once an I-140 is approved, not only is the priority date established, but the beneficiary gets to keep that priority date and use it for any other approved I-140. This applies, even if the sponsoring employer later withdraws the I-140.

Still, the regulation does list several ways a priority date can be lost. Broadly speaking, these fall into two categories – problems that relate directly to the approved I-140 and problems with the underlying PERM LC, where applicable.

More specifically, a priority date can be lost if the I-140 is revoked due to fraud, willful misrepresentation, or a material error by the USCIS. In other words, if the USCIS can establish that the I-140 petition should not have been approved, then the foreign national can lose the priority date of that approved I-140.

As for issues related to the underlying PERM, the DOL can revoke an approved LC if the certification was not justified. Fortunately, this practice is relatively rare in cases where the I-140 has already been approved. The LC can also be invalidated by the USCIS or the U.S. Department of State based on fraud or a willful misrepresentation of a material fact.

Conclusion

The Murthy Law Firm has encountered situations where the USCIS has claimed a foreign national has forfeited a priority date, contrary to what is stated in the regulation. As a critical benefit for foreign nationals seeking to secure a green card, losing a priority date should not be accepted without at least consulting an attorney first to determine any options that may be available.

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