CASE: I-140 (EB-3 Category) / Schedule A / Request to retain earlier priority date
EMPLOYER: Physicians’ Office
BENEFICIARY: Chinese Nurse Practitioner
LOCATION: Pennsylvania
Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, she was eligible for “Schedule A” classification. With our office’s help, on July 25, 2017, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.
However, since she is a Chinese national her priority date is later than the other Chinese nationals who have third-preference I-140 petition approval. Thus, our client would like to downgrade her approved EB-2 petition to the third preference so that she can file the adjustment of status application earlier. After the consolation with our office, she and her prospective employer decide to file the third I-140 petition while retain her old priority date.
According to 8 C.F.R. § 204.5(e):
A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.
Our client retained our office again on October 5, 2017. On October 13, 2017, our office filed the I-140 EB-3 petition for our client. In the cover brief, we citied aforementioned statutory language, and explained that our client is eligible for retaining old priority date for this subsequent I-140 petition, requesting the Eb3 classification based on the same labor certification which was also filed by the same petitioner.
However, on December 15, 2017, the USCIS issued the Request for Evidence (RFE) and requested the Petitioner’s most recent tax return document to determine its ability to pay. On January 26, 2018, our office filed the Response to Request for Evidence along with the Petitioner’s most recent tax return. Eventually, on February 12, 2018, the USCIS approved our client’s I-140 EB-3 petition with old priority date.