In 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Immigration Appeals states that alien may not utilize the priority date form her original I-140 petition because it was withdrawn by her prior employer and the USCIS revoked it.
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 She had a prior I-140 petition with January 10, 2006, priority date, but the prior employer had withdrawn the petition, and the USCIS had revoked its approval, following the withdrawal.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 The immigration judge determined that because the first I-140 had been withdrawn and the approval revoked, the alien could not use the old priority date for the new petition.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.
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agreed with the immigration judge that the alien cannot use the old priority date because the first I-140 had been withdrawn.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.