There are two ways by which an alien can transfer his employment to another employer and still retain the priority date of an earlier case filed by the first employer.
The first one is through the portability provisions of the American Competitiveness Act of the 21st Century, more popularly known as AC21. AC21 provides that the approval of an employment-based immigrant petition shall remain valid even when an alien changes jobs or employers, if:
a. Form I-485, Application to Adjust Status, on the basis of the employment-based immigrant petition, has been filed and remained un-adjudicated for 180 days or more; and
b. The new job is in the same or similar occupational classification as the job for which the petition was filed.
In addition, according to a memorandum issued by the U.S. Citizenship and Immigration Services (USCIS), in order to effectively transfer an employment to another employer under the portability provisions of AC21, the immigrant petition filed must have been legally approvable at the time of filing and must eventually be approved by the USCIS.
Illustration:
Company A, a hospital, filed an immigrant petition in behalf of Maria, a registered nurse, in July 2007. On the basis of said immigrant petition, Maria filed simultaneously with said petition an application for adjustment of status. The USCIS approved the immigrant petition in December 2009. Maria now wants to transfer her job and immigrant petition to another hospital pursuant to the portability provisions of the AC21. Her case will qualify for transfer under AC21 because: (a) her adjustment of status application has been filed and remains pending to this date; (b) the new job (registered nurse) is in the same or similar occupational classification as the job for which the petition was filed; and (c) the USCIS had already approved the immigrant petition filed in her behalf.
The second way by which an alien can transfer his employment to another employer and still retain the priority date of an earlier case filed by the first employer is through the provisions of the regulations regarding recapture of priority date.
The regulations allow the beneficiary of a first-, second-, or third-preference category employment-based petition to retain the priority date of that earlier petition for the purpose of applying for an immigrant visa or adjustment of status based on a later approved petition.
The Adjudicator’s Field Manual provides the following example to illustrate the proper application of the regulations pertaining to the recapture of priority date:
Company A files a labor certification request on behalf of an alien (“Joe”) as a janitor on January 10, 2003. The Department of Labor 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.
Please note that there is no requirement under the regulations pertaining to the recapture of priority date that the subsequent job offer(s) to the alien be the same as or similar to the job originally offered to him by the first employer. Further, please note that unless revoked for fraud or misrepresentation, a priority date accorded by approval of an employment-based first, second, or third preference petition is retained by the alien beneficiary for any other first, second, or third preference petition approved subsequently for the same beneficiary. In all cases, the beneficiary of multiple petitions is entitled to the earliest of the filing dates of the various petitions.
If you want to know more about this topic, then we invite you to schedule an appointment for your free initial office consultation by calling us at (818) 956-8844 [Glendale] or at (626) 331-8188 [Covina]. You may also visit us at www.palacioslawfirm.com.
The first one is through the portability provisions of the American Competitiveness Act of the 21st Century, more popularly known as AC21. AC21 provides that the approval of an employment-based immigrant petition shall remain valid even when an alien changes jobs or employers, if:
a. Form I-485, Application to Adjust Status, on the basis of the employment-based immigrant petition, has been filed and remained un-adjudicated for 180 days or more; and
b. The new job is in the same or similar occupational classification as the job for which the petition was filed.
In addition, according to a memorandum issued by the U.S. Citizenship and Immigration Services (USCIS), in order to effectively transfer an employment to another employer under the portability provisions of AC21, the immigrant petition filed must have been legally approvable at the time of filing and must eventually be approved by the USCIS.
Illustration:
Company A, a hospital, filed an immigrant petition in behalf of Maria, a registered nurse, in July 2007. On the basis of said immigrant petition, Maria filed simultaneously with said petition an application for adjustment of status. The USCIS approved the immigrant petition in December 2009. Maria now wants to transfer her job and immigrant petition to another hospital pursuant to the portability provisions of the AC21. Her case will qualify for transfer under AC21 because: (a) her adjustment of status application has been filed and remains pending to this date; (b) the new job (registered nurse) is in the same or similar occupational classification as the job for which the petition was filed; and (c) the USCIS had already approved the immigrant petition filed in her behalf.
The second way by which an alien can transfer his employment to another employer and still retain the priority date of an earlier case filed by the first employer is through the provisions of the regulations regarding recapture of priority date.
The regulations allow the beneficiary of a first-, second-, or third-preference category employment-based petition to retain the priority date of that earlier petition for the purpose of applying for an immigrant visa or adjustment of status based on a later approved petition.
The Adjudicator’s Field Manual provides the following example to illustrate the proper application of the regulations pertaining to the recapture of priority date:
Company A files a labor certification request on behalf of an alien (“Joe”) as a janitor on January 10, 2003. The Department of Labor 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.
Please note that there is no requirement under the regulations pertaining to the recapture of priority date that the subsequent job offer(s) to the alien be the same as or similar to the job originally offered to him by the first employer. Further, please note that unless revoked for fraud or misrepresentation, a priority date accorded by approval of an employment-based first, second, or third preference petition is retained by the alien beneficiary for any other first, second, or third preference petition approved subsequently for the same beneficiary. In all cases, the beneficiary of multiple petitions is entitled to the earliest of the filing dates of the various petitions.
If you want to know more about this topic, then we invite you to schedule an appointment for your free initial office consultation by calling us at (818) 956-8844 [Glendale] or at (626) 331-8188 [Covina]. You may also visit us at www.palacioslawfirm.com.
***
Attorney Eugene M. Palacios is the founder and principal of the Law Offices of Eugene M. Palacios, APLC. He has great depth of experience and a successful track record in handling employment and family-based petitions as well as PERM and naturalization applications. He is licensed as an attorney in California and is admitted to practice before U.S. Immigration Courts, the U.S. Central District Court, and California State Courts. He is also an active member of the American Immigration Lawyers’ Association. His offices are located at 100 North Brand Boulevard, Suite 600, Glendale, California 91203 and at 800 South Barranca Avenue, Suite 250, Covina, California 91723. The above article does not, and is not intended to, constitute legal advice for a specific immigration problem and does not create an attorney-client relationship between our office and the reader. It is for informational purposes only and reflects our law firm’s opinions and views on general issues.
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