DOS Cable on Employment-Based Priority Dates

Ref: 94 State 30090

1. Summary: The referenced cable explained various visa provisions contained in PL 103-416, "The 1994 Technical Correction Act." Paragraph 12 refers to the change in establishing priority dates. This Act sets the priority date for employment-based preference cases requiring labor certifications to be the filing date of the labor certification, changing in rule used during the transition period created by IMMACT 90. End of Summary.

2. Background: Section 161(c) of the Immigration Act of 1990, "IMMACT", addressed the transition of the former third and sixth preferences to the newly enacted EB-2 and EB-3 preferences. To implement these provisions, INS stated in its instructions at the time that in order to maintain the priority date of a labor certification which had been filed with the State Employment Office before October 1, 1991, an employment-based immigrant petition on Form I-140 must have been filed before October 1, 1993. If the I-140 petition had been filed after October 1, 1993, the priority date would be the date on which the I-140 petition had been 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 have filed an I-140 petition within 60 days after the date of certification to preserve the pre-October 1, 1991 priority date. This instruction was codified in INS regulations (8 CFR 204.5 (D)) effective October 11, 1994.

3. New Rule: On October 25, 1994 the enactment of the Technical Correction Act changed all this. Section 218 of the 1994 Technical Corrections Act amends section 161(C)(1) of IMMMACT, thereby repealing the recent changes to 8 CFR 204.5(D). The effect of this legislation is that the priority date on all employment-based petitions where there is a labor certification, including labor certifications filed before October 1, 1991, will be the date on which the petitioner filed the labor certification with the State Employment Office. Consequently, when INS now approves an I-140 petition which is accompanied by a labor certification, the priority date for that petiton shall in all cases be the date on which the State Employment Office accepted the labor certification application. The new rule applies retroactively to transition cases.

4. Action: Since October 1, 1993, INS 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 the 1994 Technical Corrections Act, petitioners may request a change in the priority date for such petitions. INS has instructed that if the I-140 petition is pending at a U.S. Consulate or the NVC for visa processing, the petitioner or the beneficiary should request a change in the priority date for such petitions. INS has instructed that if the I-140 petition is pending at a U.S. consulate or the NVC for visa processing, the petitioner or the beneficiary should request a change in the priority date from the consular post and/or the NVC. Consular Officers or NVC shall make the change of priority dates in these cases upon request of an interested party or automatically if the consular officer identifies the petition as being a transition case. INS has been delegated the authority to the Department, Consular Officers and NVC, to make the necessary change in the priority date.

5. Adjustment Cases. If the beneficiary set to apply for adjustment of status, the INS office will request the NVC or the U.S. consulate to return the petition to the requesting office. The Consular Officer or NVC shall expeditiously forward the petition to that INS office.

27MM5E21