Porting based on approve I140

[sweta.shetty]

hello,
Have an approved I140 from current employer and have offered a new position with employer B. What clause can be used to retain the prioirty date? have never filled I485 as PD was never current. Please can you provide me links to legal memos as have to convince the immigration team of employer B. I do know that the whole process has to be restarted from perm to labor, but still want to maintain my Priority date.

TIA,
Shweta.

[Spectator]

hello,
Have an approved I140 from current employer and have offered a new position with employer B. What clause can be used to retain the prioirty date? have never filled I485 as PD was never current. Please can you provide me links to legal memos as have to convince the immigration team of employer B. I do know that the whole process has to be restarted from perm to labor, but still want to maintain my Priority date.

TIA,
Shweta.

Shweta,

How about AFM 22.2 (d)(1)

(1) Determining the Priority Date.

In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successor in interest).

or AFM 22.2 (d)(3)

(3) Priority Date Based on Earlier Petition.

If an alien is the beneficiary of two (or more) approved employment-based immigrant visa petitions, the priority of the earlier petition may be applied to all subsequently-filed employment-based petitions. For example:

Company A files a labor certification request on behalf of an alien ("Joe") as a janitor on January 10, 2003. The DOL issues the certification on March 20, 2003. Company A later files, and USCIS approves, a relating I-140 visa petition under the EB-3 category. On July 15, 2003, Joe files a second I-140 visa petition in his own behalf as a rocket scientist under the EB-1 category, which USCIS approves. Joe is entitled to use the January 10, 2003, priority date to apply for adjustment under either the EB- 1 or the EB-3 classification.

or 8 CFR Part 204, Sec. 204.5 Petitions for employment-based immigrants

(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.

where 203(b)(1), (2), or (3) refers to EB1, EB2 and EB3 respectively. 203(b)(3) covers, EB3 Professional, EB3 Skilled Worker and EB3 Other Worker.

You can find the AFM here and 8CFR here.

[sweta.shetty@gmail.com]

Thank you Spec.