INS on Priority Dates for Employment-Based Petitions

The following is a April 4, 1995 letter from James Puleo, Executive Associate Commissioner Programs (INS), to all District Directors, Service Center Directors, Officers-in-Charge, Regional Supervisory Examiners, Deputy Directors, IOA, Glynco, GA and Deputy Director, IOA, Artesia, NM regarding the priority dates for employment-based immigrant petitions:

On August 16, 1993, we issued a policy memorandum implementing the provisions of Section 161(c) of the Immigration Act of 1990 (IMMACT). The second portion of the memorandum concerned the validity of labor certifications filed before October 1, 1991. The memorandum, implementing section 161(c)(1) of IMMACT, stated that in order to maintain the priority date of a labor certification which was filed with the state employment office before October 1, 1991, an employment-based immigrant petition on Form I-140 had to be filed before October 1, 1993. Under this instruction, if the I-140 petition were filed after October 1, 1993, the priority date would be the date on which the I- 140 petition was properly filed with the Service Center. If the pre-October 1, 1991, labor certification had not been approved before October 1, 1993, the petitioner had to file an I-140 petition within 60 days after the date of certification to preserve the pre-October 1, 1991, priority date.

An interim regulation, implementing section 161(c)(1) of IMMACT, was published in the Federal Register on January 5, 1994. See 59 FR 501-502. This interim regulation codified the August 16, 1993, memorandum by amending 8 CFR 204.5(d). On October 11, 1994, the interim rule was adopted as final. See 59 FR 51358-51360

On October 7, 1994, Congress enacted the Immigration and Nationality Technical Corrections Act of 1994 (1994 Technical Corrections Act). On October 25, President Clinton signed this bill. Section 218 of the 1994 Technical Corrections Act amends section 161(c)(1) of IMMACT by deleting any reference to labor certifications. This section effectively repeals the second portion of the August 16, 1993, memorandum and the recent changes to 8 CFR 204.5(d). The effect of this legislation is that the priority date, for all petitions, shall be the date on which the state employment office accepted the labor certification application.

Since October 1, 1993, Service Centers have approved I-140 petitions based on pre-October 1, 1991, labor certifications and assigned the filing date of the I-140 petition as the priority date. Based on the enactment of section 218 of the 1994 Technical Corrections Act, petitioners may request, without fee, a change in the priority date for such petitions.

If the I-140 petition is pending at a U.S. Consulate or the National Visa Center (NVC) and the beneficiary will apply for an immigrant visa at a consulate, the petitioner or the beneficiary should request a change in the priority date from the consular post or the NVC, depending on which office has the petition.

If the beneficiary seeks to apply for adjustment of status, and the priority date, which is based on the date the underlying labor certification was accepted for processing with the state employment office, has been reached, the beneficiary may apply for adjustment of status at a district or local office. The I-140 approval notice and a copy of the underlying labor certification must accompany the application. The earliest date on the lower right-hand portion of Form ETA 750A is the priority date. Upon receipt of the application for adjustment of status, the local office must request the original I-140 petition from a Service Center, NVC, or a consulate abroad, whichever has the petition. The application for adjustment of status cannot be approved until the adjudicator has reviewed the original I-140 petition and labor certification and verified that a change in the priority date date, based on the 1994 Technical Corrections Act, should be made.

The Service will issue a regulation implementing this policy in the near future. If there are any questions regarding this instruction, please contact Michael Straus, Senior Adjudications Officer, Office of Adjudications, at 202/514- 3228.

James Puleo

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