Though the I 140 Immigrant Petition cannot be filed until the labor certification is approved, the date the labor certification is filed with the Department of Labor (DOL) establishes a foreign national's priority date. If no labor certification is required, the date the I-140 Immigrant Petition is filed becomes the foreign national's priority date. The priority date is essentially a foreign national's "place in line" for adjustment of status or consular immigrant visa processing. Once a foreign national's priority date is current on the Visa Bulletin, the foreign national is eligible to complete the green card process.

Transferability Criteria

Due to lengthy adjudication times, it is possible that a foreign national may change employers or positions prior to the completion of the green card process. A change in position and/or employer will generally require the filing of a new labor certification and I-140 Immigrant Petition if the foreign national does not intend to return to the previous employer/position. Further, if a foreign national in the EB-3 category is promoted to an EB-2 position, they would most likely desire to file a new labor certification and I-140 Immigrant Petition to take advantage of the quicker processing times in the EB-2 category.

Fortunately, if a foreign national's original I-140 Immigrant Petition has been approved in the first, second or third employment-based preference category, their priority date can be transferred to a newly filed labor certification/I-140 Immigrant Petition in the first, second or third employment-based preference category. Additionally, the transferability of a priority date is not affected if the previous employer subsequently withdraws the original, approved I-140 petition. It is important to note that a priority date will only be transferable if the original I-140 Immigrant Petition has been approved.

Transferability Example

To illustrate, a foreign national may have an approved labor certification from an EB-3 PERM filed in 2005 and an approved I-140 Immigrant Petition. The foreign national is then promoted to an EB 2 position and an EB-2 PERM is filed in 2009. Due to the fact that the original I-140 Immigrant Petition has been approved, the foreign national is allowed to transfer their 2005 priority date to the EB-2 PERM filed in 2009. It is incumbent upon the petitioning party, however, to notify the USCIS of the earlier priority date and request the earlier priority date be transferred to the new petition.