Common Issues: Priority Date on I-140 Receipt and Approval Notices
While we trust USCIS to do its job properly, we recognize no people or organization is perfect and mistakes will happen. With regard to I-140 receipt and/or approval notices, we often see two issues causing concern for clients. However, in the end these issues are non-issues and should not cause alarm or any undue concern.
One common scenario is that the I-140 receipt notice does not properly reflect what we might think of as the proper priority date. For instance, let’s say I have a previously approved I-140 from Company A with a priority date of January 1, 2014. The law tells us that for any subsequent I-140 that I may have filed on my behalf I am entitled to keep, or “port” that priority date of January 1, 2014. We often call this the “ported” priority date because you are allowed to pull forward this priority date for any and all subsequent I-140 cases filed.
Now, Company B is going to file an I-140 for me. They obtain their own approved PERM Labor Certification featuring a priority date of December 1, 2020. Company B then files their I-140 based on their PERM approval but the I-140 receipt notice comes back showing a priority date of December 1, 2020 rather than January 1, 2014 of which we are entitled by law. Did USCIS make an error? Will this impact my I-140 or I-485?
Absolutely not. This is a non-issue. Whenever an I-140 is filed, the receipt notice will always show the priority date of the underlying/supporting PERM Labor Certification, not the earliest available priority date a/k/a the ported priority date from any previously approved I-140 case. In the above scenario, Company B’s I-140 receipt notice will always show the priority date of Company B’s approved PERM Labor Certification (December 1, 2020). However, when USCIS approves Company B’s I-140, that I-140 approval will reflect the priority date from Company A’s I-140 approval (January 1, 2014).
If the I-140 receipt notice does not reflect the ported priority, do not at all be alarmed. This is exactly how the document should appear.
As we recognize, USCIS may make a mistake. This leads us into our second common scenario: they may fail to properly reflect the earliest available priority date that the law entitles on the I-140 approval, or perhaps they make a silly typographical error on the I-140 approval by completely listing the wrong priority date or misspelling a name. Will this impact the I-485?
Absolutely not. This is a non-issue. The first course of action would be to place a service request with USCIS to obtain a corrected I-140 approval notice. Typically, they will provide the amended approval notice within 2-6 weeks. Regardless of whether or not USCIS provides the new approval notice showing the proper priority date, this will not impact the I-485 and one should not hesitatem moving forward on the I-485. Why? Simply put, we have everything we would need to document to USCIS the true and correct priority date. Of course, we always prefer the documents to be “perfect” because it makes everyone’s job just that much easier. However, when we are operating on “less than perfect” documents, we can show two things 1) Company A’s I-140 approval notice showing the priority date we are entitled to and 2) Company B’s I-140 supporting the filing of the I-485. While it may slightly delay the adjudication of the I-485, USCIS should take no issues with the I-485 filing.
By: Ryan A. Wilck, Partner and Attorney at Law
Ryan Wilck is an attorney at Reddy & Neumann P.C. assisting helping clients and their employees through the phases of the Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients utilizing a relentless and detail-oriented work ethic to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem, he and his team will find a solution, through wisdom and effort.