New Rules on When Certain Adjustment of Status Applicants Can Keep Old Priority Date

DHS clarifies that if U.S. Citizenship and Immigration Services (USCIS) revokes a petition for one of several reasons.

On November 18, 2016, the Department of Homeland Security published regulations concerning several employment-based immigration areas. The regulations, with the title, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” will go into effect on January 17, 2017.

Until now, there has been some uncertainty concerning the circumstances under which the beneficiary (worker) of an employment-based immigration petition in the EB-1, EB-2, and EB-3 categories retains the approved petition’s priority date. This is important, because retaining an earlier priority date can mean a difference of several years or more to complete the application process for lawful permanent residence (a green card).

It’s now clear that if U.S. Citizenship and Immigration Services (USCIS) revokes a petition for one of the following reasons, the beneficiary’s priority date is lost:

  • fraud, or a willful misrepresentation of a material fact in the petition filing
  • revocation of the underlying labor certification application by the Department of Labor
  • invalidation of the underlying labor certification application by USCIS or the U.S. State Department, or
  • a determination by USCIS that it committed a “material error” in approving the petition.

The regulation further confirms that a denied petition does not establish a priority date and that a priority date cannot be transferred from one person to another.

Finally, the two circumstances that would prevent a priority date from remaining valid indefinitely are when the State Department causes revocation of the petition for the beneficiary’s failure to pursue lawful permanent resident status within certain timeframes, or when USCIS revokes the petition on its own for “good and sufficient cause.”