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Keeping
and Losing the Priority Date after Form I-140 Petition Approval |
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William, We recent received a notice from the USCIS to let us know that the approved Form I-140 petitition has been revoked due to some mistakes. Does this also mean that the I will also lose the "priority date"? Answer, There are situations where the USCIS has claimed a foreign national has lost a priority date, contrary to what is stated in the regulation. As a critical benefit for foreign nationals seeking to get an U.S. Green Card, losing a priority date should not be accepted without determining any options that may be available. According USCIS regulation, once a Form I-140 petition is approved, the priority date has established, So, the beneficiary gets to keep that priority date, and may use it for any other approved Form I-140 petition, and can use priority date for Form I-485 Green Card application. This applies even if the sponsoring employer later withdraws the Form I-140 petition. USCIS regulation has listed several ways a priority date can be lost. These fall into two categories: 1) problems that relate
directly to the approved Form I-140 petition, and
2) problems with the underlying PERM Labor Application, where applicable. More specifically, a priority date can be lost if the Form 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 form I-140 petition should not have been approved at the first place, then the foreign national can lose the priority date of that approved form I-140 petition. For the underlying PERM Labor Application, the U.S. Department of Labor (DOL) can revoke an approved Labor Application if the certification was not justified. But this situation is relatively rare in cases where the form I-140 petition has already been approved. The PERM Labor Application 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. |
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