Legal Question in Immigration Law in California

Re: Priority date transfer with new employer

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Re: Priority date transfer with new employer

Interesting question. The same I-140 can be used, or "ported", when you change employer as long as the I-485 has been pending for 180 days or more, and the new job is in the same or similar occupational classification as the job in the I-140 petition. So, after you are allowed to file the I-485 (when priority date is current) and it has been pending for 180 days or more, then the same I-140 can be used with the same priority date. However, USCIS may view the attempt to upgrade the same job position from EB-3 in the I-140 to EB-2 as not being the same or similar classification (EB-2 requires Master's degree or number of years equivalent). That is, an entry level position in a particular field probably is but may not be considered similar occupational classification as a supervisory-level position in the same field.

Larry L. Doan, Esq.

(Straight-talk on Immigration Law at www.GuruImmigration.com)

Note: The above response is provided for information only and should not be construed as legal advice, nor to create an attorney-client relationship, which can only be established through payment of consideration.

Re: Priority date transfer with new employer

Yes, you can use the old priority date because you have an approved I-140; it doesn't matter that it's in a different priority category, but you need a new labor certification (or exemption from the labor cert requirement) and can't port to a new employer because you don't have an I-485 filed for at least 180 days.

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Alice M. Yardum-Hunter, Attorney at Law, Certified Specialist, Immigration & Nationality Law, State Bar of CA, Bd. of Legal Specialization

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