Establishing and Losing a Priority Date in Employment-Based Immigration: Rules for EB-1, EB-2 and EB-3
This article explains that EB-1, EB-2, and EB-3 priority dates are established upon I-140 approval, and distinguishes priority date determination under the two scenarios of requiring PERM labor certification and exempting PERM; it also introduces priority date retention under regulations effective January 17, 2017, and circumstances where priority dates are lost due to fraud, willful misrepresentation, USCIS material error, or labor certification revocation.
Foreign nationals who wish to become lawful permanent residents of the United States (i.e., obtain a “green card”) generally need to understand the concept of a priority date. For all employment-based (EB) preference categories, the priority date is critical because it determines when the applicant can file an application for adjustment of status (Form I-485) and when it can be approved; if the case is filed through consular processing, it determines when an immigrant visa can be issued.
It is therefore helpful to understand how a priority date is established and under what circumstances it can be retained or lost. Please note that this article focuses only on the employment-based first, second, and third preference categories (EB1, EB2, and EB3).
Establishing a Priority Date
An employment-based priority date is established when the immigrant petition (Form I-140) is approved. The specific priority date assigned depends on the type of case:
- For cases requiring PERM labor certification (LC), the priority date is the date the case is filed with the U.S. Department of Labor (DOL).
- If the EB case falls within a category that does not require PERM labor certification, the priority date assigned is the date the I-140 is filed with U.S. Citizenship and Immigration Services (USCIS).
Retaining and Losing a Priority Date
Under the rule effective January 17, 2017, once an I-140 is approved, a priority date is established, and the beneficiary may use that priority date for any other approved I-140, even if the sponsoring employer later withdraws the original I-140.
The regulations, however, do set out several ways in which a priority date can be lost. Broadly, these fall into two categories: issues directly related to the approved I-140, and issues related to the underlying PERM labor certification, where applicable. Specifically:
- If the I-140 is revoked due to fraud, willful misrepresentation, or a material error by USCIS, the priority date is lost. In other words, if USCIS can establish that the I-140 petition should not have been approved, the foreign national will lose the priority date from that I-140.
- As for issues related to the underlying PERM, DOL may revoke an approved labor certification if it determines that the certification was not justified. Fortunately, this situation is relatively rare once the I-140 has been approved. A labor certification can also be invalidated by USCIS or the U.S. Department of State for fraud or willful misrepresentation of a material fact.
