USCIS Confirms Retention of Priority Date for Subsequent I-140s

We have been receiving calls and emails from employment-based applicants for green card asking us whether they have a second green card process started by a new company.  Generally, the inquiries are from EB-3 beneficiaries who are eligible and would like to start an EB-2 application.  Most of these inquiries come from individuals from countries for which visa numbers are not available or severely backlogged (India, for example).

Beneficiaries who have an I-140 approved are eligible to retain their priority date if they have another I-140 approved for the same or a different EB category.   Under 8 CFR § 204.5(e), if more than one I-140 is approved for a single beneficiary, the beneficiary gets the benefit of the earliest priority date even if the I-140s are approved in different EB categories.

In a recent USCIS/AILS Liaison exchange, USCIS has acknowledged that the approval notice for the second I-140 should automatically reflect the earlier priority date if the beneficiary is eligible to retain it.  However, USCIS has confirmed our practice at the Capitol Immigration Law Group to clearly mark the the second I-140 filing (by bright cover sheet and including a copy of the earlier I-140 approval notice showing the earlier priority date).   USCIS has advised that second I-140s which do not retain the earlier priority date should be corrected by calling the NCSC (or Division 12 at CSC).