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How To Retain An Old EB Priority Date

by Carl Shusterman

This month, we answer a question about how you can retain your EB priority date when you change employers, but before you are eligible to apply for adjustment of status. The following example is instructive:

Mr. Kumar was a computer professional at Infotech in Pennsylvania when he scheduled a telephonic legal consultation with me earlier this year. In June 2004, his employer submitted a labor certification application on his behalf which was approved in 2006. Then, Infotech filed an I-140 petition which was approved under the EB-3 category.

Because Mr. Kumar was born in India, the retrogression prevented him from adjusting his status for several more years. In the meantime, because of the skills that he had acquired at Infotech, he had become a hot commodity in his chosen profession. Computerworks in Georgia had offered him an offer of employment which far exceeded his $60,000 salary at Infotech. He knew that he could use AC-21 to change his H-1B employer and to extend his status past the usual six-year limit. However, he was loathe to start the PERM process and wait three more years for his priority date under EB-2 (Computerworks required a B.S. degree and five years of professional experience as the minimum entry requirement for the job.) to become current.

For weeks, he agonized and consulted with numerous friends, posted inquiries on various message boards and asked attorneys what to do. Everyone told him that changing jobs at this juncture would result in a lost priority date, an immigration disaster.

By the time he scheduled a consultation with me, he had all but given up hope. My first question to Mr. Kumar was what would he do if he were a U.S. citizen. Without hesitation, he replied that he would take the job at Computerworks since it was a significant promotion and his salary would increase almost 50%.

I then informed him about an important Immigration Service regulation found at 8 CFR 204.5(e):

"(e) Retention of section 203(b)(1) , (2) , or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien."

This regulation allows a person with a priority date under the EB-1, EB-2 or EB-3 categories to retain their priority even after they change employers as long as they obtain the approval of a new I-140, or in Mr. Kumar's case, the approval of a PERM application and an I-140 petition.

He asked a number of questions (Example: Had we ever used this regulation and been successful in the past? Answer: Yes, at least 100 times over the past 25 years since I left the INS and entered private practice.) Before the end of our 30-minute consultation, he gave me the go ahead to begin a new PERM application on his behalf.

Even though Mr. Kumar's original priority date was under the EB-3 category, when we submitted a PERM application and an I-140 on his behalf, we did so under the EB-2 category. Because of the above regulations, he was able to retain his 2004 priority date and upgrade his category to EB-2.

In July, we submitted an I-485 on his behalf. Today, he is close to becoming a permanent resident and he was able to switch to his "dream" job.

Talk about a "win-win" situation!

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

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