New Rules for Establishing Priority Dates, Retaining Priority Dates, and Automatic Revocation of I-140 (effective Jan. 17, 2017)

Introduction

On November 18, 2016, the Department of Homeland Security published a new final rule in the Federal Register (FR) titled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” (see 81 FR 82398) [PDF version]. The rule came into effect on January 17, 2017. To read an overview of all of the changes in the 95-page rule, please see our full article [see article].

In this article, we will examine the amended regulations in 8 C.F.R. 204.5(d) and (e) relating to establishing priority dates and priority date retention. We will also examine the amended regulations in 8 C.F.R. 205.1(a)(3)(iii)(C) and (D) regarding the retention of employment-based immigrant visa petitions. To do so, we will examine the discussion of the new amended regulation and the text of the regulation itself. For a comprehensive list of articles on other changes in the final rule, please refer to the overview that we provided a link to in the opening paragraph of this article.

For the text of the current 8 C.F.R. 204.5 as amended by the new final rule, please consult the following link [PDF version]. For the text of the current 8 C.F.R. 205.1, please see the following link [link].

Establishing Priority Date for Employment-Based Petition

The amended regulation regarding establishing priority dates for employment-based preference petitions (EB1, EB2, and EB3) is found in the amended 8 C.F.R. 204.5(d).

At 82 FR 82414, the DHS explains the key points of the new 8 C.F.R. 204.5(d).

First, the DHS explains that the regulations have provided that the priority date for an employment-based petition accompanied by a labor certification application [see category] “is established when the labor certification is accepted for processing by [the Department of Labor (DOL)].” The amended regulation makes no change to determining priority dates for employment-based petitions accompanied by labor certification applications. However, the DHS explained that the previous regulations did not directly address employment-based petitions that are filed without a labor certification application. The new rule makes clear that, generally, the priority date for an employment-based petition is the date on which such petition is properly filed with the United States Citizenship and Immigration Services (USCIS). This amended rule does not provide a change in policy in this area so much as it codifies existing practice in the Code of Federal Regulations.

The rest of 8 C.F.R. 204.5(d) remains as it was before the publication of the new final rule.

Retention of Priority Dates

The amended regulations regarding the retention of priority dates for EB1, EB2, and EB3 petitions are found in 8 C.F.R. 204.5(e).

Under the amended 8 C.F.R. 204.5(e)(2), the beneficiary of an approved Form I-140 petition will not retain his or her priority date for subsequently filed Forms I-140 on his or her behalf if the initial Form I-140 is revoked because of (i) fraud or misrepresentation of a material fact; (ii) revocation of the approved labor certification application by the DOL; (iii) invalidation by the USCIS or Department of State (DOS) of the approved labor certification that accompanied the petition; or (iv) a determination by the USCIS that the petition approval was based on a material error.

The pertinent changes are detailed in the final rule at 82 FR 82414.

Automatic Petition Revocation

The amended regulations regarding the automatic revocation of approved Forms I-140 is found in 8 C.F.R. 205.1(a)(3)(iii)(C) and (D).

The amendments to 8 C.F.R. 205.1 are arguably some of the most significant in the final rule. The DHS discusses the changes at 82 FR 82414-82415.

The new final rule “amends existing automatic revocation regulations to prevent Form I-140 petitions that have been approved for 180 days or more from being automatically revoked based solely on the withdrawal of the petition by the petitioner or the termination of the petitioner's business.” Additionally, such petitions will remain valid for purposes of priority-date retention unless the approval of the petition is revoked on any of the grounds specified in the amended 8 C.F.R. 204.5(e)(2), which we discussed in the previous section.

This rule change serves to protect the interests of beneficiaries of approved Forms I-140 in a variety of ways. The DHS explains that such a petition will generally remain valid for the following purposes:

Form I-140 portability under section 204(j) of the Immigration and Nationality Act (INA);
Extensions of status for certain H1B nonimmigrants beyond the 6-year statutory limit under sections 204(c) and 106(a) and (b) of AC21; and
Eligibility for employment authorization in compelling circumstances under the amended 8 C.F.R. 204.5(p) [see article].

With the changes, the amended regulation makes clear that an approved Form I-140 that is subject to withdrawal or business termination does not, on its own, constitute a bona fide offer of employment related to the petition. This means that, while 8 C.F.R. 205.1(a)(3)(iii)(C) and (D) may prevent certain petitions in these circumstances from being automatically revoked, the beneficiaries of the petitions must either (1) have new Forms I-140 filed on their behalf, or (2) if eligible to exercise section 204(j) portability, have new offers of employment in the same or similar occupational classification [see article]. 8 C.F.R. 245.25(a)(2) now reflects the current rules for adjustment of status in these scenarios.

Note from Public Comments on Beneficiary Notification of Form I-140 Revocation

In the final rule, the DHS responds to many of the public comments it had received in response to the initially proposed version of the rule. At 82 FR 82418, the DHS responded to a public comment that it should create a rule requiring that individual beneficiaries be provided notice when the USCIS seeks to revoke their Forms I-140. We discuss the general implications of this issue in our article on the Second Circuit decision in Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015) [PDF version] [see article].

The DHS responded by saying that it recognized the concerns raised by the commenters, but it could not address them in the final rule because they were outside the scope of the current rulemaking. However, the DHS stated that it “is considering separate administrative action outside of this final rule to address these concerns.” This issue will bear watching going forward, since an effort by the DHS to address the concerns of the commenters would be highly favorable to beneficiaries with approved Forms I-140 that — unbeknownst to them — may be in danger of revocation.

Conclusion

The DHS made several important changes in the amended regulations discussed in this article.

The change to 8 C.F.R. 204.5(d) codifies the rules for establishing the priority date for an employment-based immigrant visa petition that is not accompanied by labor certification. This change will help add certainty to the rules for establishing priority dates in such circumstances.

8 C.F.R 204.5(e) makes explicit the circumstances in which the beneficiary of an approved employment-based preference petition will be unable to retain his or her priority date.

8 C.F.R. 205.1(a)(3)(iii)(C) and (D) offer the most significant amendments addressed in this article. By curtailing the circumstances in which an approved Form I-140 may be automatically revoked, this new rule promises to benefit a number of individuals who may have been subject to the automatic revocation of their Forms I-140 through no fault of their own. This new rule will have a significant effect on such individuals' ability to seek adjustment of status expeditiously, seek extensions of H1B status where applicable, or seek to exercise Form I-140 portability where applicable. Additionally, such individuals may be eligible to benefit from the amended 8 C.F.R. 204.5(p), which allows for employment authorization in compelling circumstances in a limited set of cases [see article].

These changes will be important for stakeholders, employers, and aliens seeking employment-based immigrant visas. Please refer to our main article on the new final rule for a complete overview of the rule and a listing of all of our articles on its contents [see article].