The proposed rules will make a significant change in retaining priority dates in employment-based immigrant petitions. Currently, the priority date of an immigrant petition, can be retained in subsequent applications UNLESS the petition has been denied or revoked.
The new rules will allow the retention of the priority date of the denied or revoked petition as long it was not denied or revoked due to fraud or misrepresentation. See page 91 of the proposed rules.
This has huge implications esp. for non-immigrant workers who are subject to lengthy backlogs such as India and China. As I read more of the rules and I will be sure to share my opinion. Here is the relevant text:
“DHS proposes to revise these regulations so that the priority dates of EB-1, EB-2, and EB-3 petitions may be used for subsequently filed EB-1, EB-2 and EB-3 petitions, unless USCIS denies the petition (or otherwise fails to approve it) or revokes the petition’s approval due to: (1) fraud or a willful misrepresentation of a material fact; (2) a determination that the petition was approved in error; or (3) revocation or invalidation of the labor certification associated with the petition. See proposed 8 CFR 204.5(e). The priority date of a petition that has its approval revoked on these grounds would not be retained, regardless of whether the petition’s approval was previously revoked on other grounds.
This change, in combination with the proposed changes to the automatic revocation provisions discussed above, would effectively expand beneficiaries’ ability to retain the priority dates of their approved EB-1, EB-2, and EB-3 petitions, particularly those that are later withdrawn or that involve petitioning employers that go out of business. Notably, the ability to retain priority dates under this amendment would begin immediately upon petition approval even if the petition’s approval is thereafter revoked based on petition withdrawal or business termination less than 180 days after approval. This change would provide greater certainty and stability for beneficiaries in their pursuit of permanent residence in the United States. The change would also continue to allow DHS to restrict retention of priority dates in cases that merit such restriction, including in cases where the petition does not satisfy the pertinent legal requirements, cases where the underlying labor certification has been invalidated or revoked, cases involving fraud or willful misrepresentation, and cases involving DHS error.
DHS welcomes public comment on all aspects of this proposed change.”