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BIA says alien cannot keep priority date from withdrawn or revoked I-140 petition

immigration jobIn the non precedential decision In re Grace Estrellado, the Board of Immigration Appeals states that alien may not utilize the priority date form her original I-140 petition because it was withdrawn by her prior employer and the USCIS revoked it.

Background

The case involved an alien who had an approved I-140 petition for which the priority date was not current.  She had a prior I-140 petition with January 10, 2006, priority date, but the prior employer had withdrawn the petition, and the USCIS had revoked its approval, following the withdrawal.  Nevertheless, the foreign national argued to the immigration judge that she can use the old January 10, 2006 priority date and apply it to the new I-140, so that she can adjust status right away as the old priority date was current.  The immigration judge determined that because the first I-140 had been withdrawn and the approval revoked, the alien could not use the old priority date for the new petition.  He also denied the alien a continuance because the new priority date was far into the future.

Analysis

The Board of Immigration Appeals, applying de novo standard of review to the legal issues, agreed with the immigration judge that the alien cannot use the old priority date because the first I-140 had been withdrawn.  The foreign national argued that the regulations provide that she could keep the old priority date.  She cited 8 C.F.R. 204.5(e) in support of her proposition.

This regulation reads:
(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.

The Board of Immigration Appeals, however, pointed out that this regulations specifically states that a petition “revoked under sections 204(e) or 205 of the Act will not confer a priority date…”  The Board noted that as the “USCIS revoked the original visa petition, 8 C.F.R. § 204.5(e) does not permit the retention of that visa petition’s January 10, 2006 priority date.”

It appears that the USCIS had revoked the petition under section 205 of the INA, which states: “The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204 of this title. Such revocation shall be effective as of the date of approval of any such petition.” INA §205.

The regulations interpreting this section list causes for automatic revocations.  For example, 8 CFR 205.1(a)(3)(iii)(C) provides that the petition is automatically revoked “Upon written notice of withdrawal filed by the petitioner in employment-based preference cases, with any officer of the Service who is authorized to grant or deny petitions.”  Additionally, Section 8 CFR 205.1(a)(3)(iii)(D) provides that the petition is automatically revoked “Upon termination of the employer’s business in the employment-based preference case under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) of the Act.”  It is not clear under what provision the old I-140 had been revoked, but nobody argued that it was improperly revoked.  The BIA agreed with the immigration judge that the alien could not use the old priority date for her current I-140 petition.

This decision is inconsistent with past USCIS practice to ignore prior revocations and to grant the old priority date to the subsequent I-140 petition.  Chapter 22.2(d)(1) of the USCIS Adjudicator Field Manual states that a foreign national can loose his or her priority date only if the revocation is a result of fraud or misrepresentation:

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 …

The Foreign Affairs Manual echoes this practice:  “Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a priority date accorded by approval of an employment-based first, second, or third preference petition is retained by the beneficiary for any other first, second, or third preference petition approved subsequently for the same beneficiary.”  9 FAM 42.53 N3.5.

Important Points

This decision raises additional issues not addressed in the regulations or in the decision.  For example, what would happen to a second I-140 that was approved prior to the revocation of the first I-140?  Also, what if there is an approved adjustment based on the second I-140 petition?  It does not appear that USCIS has authority to revoke the second I-140 that had been assigned old priority date of a prior petition, which prior petition was subsequently withdrawn by the prior employer, and revoked by the USCIS. Also, how would this affect I-140 petitions used for extension of H-1B status pursuant to AC21 or for the purposes of porting to a new employer?

The portability provision was addressed in a December 27, 2005 Interim Guidance by Michael Aytes, Acting Director of Domestic Operations.  According to this Interim Guidance:

Question 11. When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal
that was submitted after an I-485 has been pending for 180 days.

Thus, it appears that the I-140 “vests”in aliens whose adjustment has been pending for more than 180 days and then port to a new employer, even though the I-140 was later withdrawn.  However, there is no clear answer how can a foreign national preserve his or her priority date unless their prior employer agrees not to withdraw the I-140.  Finally, does the BIA, which is part of the Department of Justice even have jurisdiction over priority dates, since the AAO, which is part of the Department of Homeland Security, reviews USCIS decisions about the validity of the I-140 petitions?  Arguably, no but in this case the Immigration Judge and the BIA examined the regulations and determined that the alien cannot file for adjustment.  While the Immigration Judge and BIA have no jurisdiction over the I-140, they do have jurisdiction over the adjustment of status.

A colleague suggested that I amend this article to reflect that “this decision failed to take into consideration the USCIS’s binding interpretation of 8 CFR 204.5(e) contained in the Adjudicator’s Field Manual, which provides that the priority date of revoked petition is still transferable so long as the petition was not revoked for fraud or misrepresentation. See AFM 22.2(d)(1).”   Thus, this decision may be an aberration since the Board has stated in prior decisions that it will defer to Department of Homeland Security (USCIS)’s interpretation of its own regulations.

On December 31, 2015, DHS issued proposed regulations “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers,” which propose to amend its automatic revocation regulations so that I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation “based solely on withdrawal by the petitioner or termination of the petitioner’s business.”  CIS No. 2571-15; DHS Docket No. USCIS-2015-0008, RIN 1615-AC05.  As long as the I-140 approval “has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or USCIS error, the petition will generally continue to be valid to the beneficiary for various portability and status extension purposes for various job portability and status extension purposes under the immigration laws” and for retention of the priority date.  Id at 11.

Obviously, the immigration law is quite complex.  An alien contemplating a change of employer will be well advised to contact an immigration attorney prior to any kind of change.