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The Benefits Of Priority Date Retention During Retrogression

by Cyrus D. Mehta

Now that the impact of the retrogression of visa numbers within the various employment-based immigrant visa categories has sunk in, it is time to think creatively about how a client can improve his or her position in the backlog.

The State Department, in the October 2005 visa bulletin, indicates that the Employment-Based First Preference (EB-1) cut-off date for China and India will retrogress to January 1, 2000 and August 1, 2002 respectively. The Employment-Based Second Preference (EB-2) for China and India will retrogress to May 1, 2000 and November 1, 1999 respectively.

The Employment-Based Third Preference (EB-3) for “professional and skilled” workers is even more grim for October 2005. For the worldwide category, the cut-off date will be March 1, 2001; for China, it will be May 1, 2000; for India, January 1, 1998; for Mexico, January 1, 2001; and for The Philippines, it will be March 1, 2001.

Ironically, the other worker “unskilled category” in the EB-3 will do better than the EB-3 category for “professional and skilled workers.” The cut-off date for the “unskilled” worker category is October 1, 2000.

One saving grace is the ability to retain an old priority date, as provided in the regulations under 8 C.F.R. § 204.5(e). This regulation allows for priority date retention under the EB-1, 2, and 3 categories for whom a subsequent employment-based petition is filed, provided that the prior petition was not revoked or denied. Thus an alien is accorded the priority date of the initial approved petition for any subsequently filed petition for any classification under the EB-1, 2 or 3 categories. In the event that the alien is the beneficiary of multiple petitions under the EB-1, 2 or 3 categories, he or she shall be entitled to the earliest priority date. If the prior petition was denied or revoked for any reason, the alien will not be able to benefit from this regulation.

Take the example of an individual who is the beneficiary of an approved I-140 petition in the EB-3 category with a priority date of April 30, 2001. This individual, who was born in India, will presently not be able to apply for permanent residence, through either the filing of an adjustment of status application or an immigrant visa at an overseas US consulate, because the official cut-off date for the EB-3 category for India has retrogressed to January 1, 1998. Suppose this individual can also qualify today as a “person of extraordinary ability” under the EB-1 category. As of October 1, 2005, the cut-off date for the EB-1 category is August 1, 2002. If an I-140 petition is filed on behalf of this person under the EB-1 category and approved, this individual can request that the priority date of the earlier EB-3 petition of April 30, 2001 be assigned to the EB-1 petition filed in 2005. If the new approved I-140 petition under the EB-1 category has an April 30, 2001 priority date, this individual can immediately apply for permanent residence. The April 30, 2001 priority date falls earlier than the official EB-1 cut-off date for India, which is August 1, 2002.

Furthermore, there also exists a useful memorandum from the legacy Immigration and Naturalization Service, which was issued by Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, dated May 9, 2000 (HQ70/23.1-P, HQ 70/6.13P). This memo indicates that when an adjudication officer is presented with a second petition either in the employment-based or family-based category, after an adjustment application has already been submitted, the adjustment application can be transferred to the subsequent immigrant petition that is approved with a current priority date.

Thus, in our earlier example, if an adjustment application has already been filed to accompany the I-140 petition that was filed and approved under the EB-3 category, this application can now be transferred to the subsequently approved EB-1 petition with a current priority date. The memo goes on to state that transferring a second approved I-140 to a pending adjustment application is generally available to the beneficiary until the adjustment application is finally approved.

This article originally appeared on

About The Author

Cyrus Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.