Can you keep the priority date of an old PERM?
PERM was approved. I-140 was denied. PERM is no longer valid. Can the old priority date be kept because of 245(i)?
3 Attorney Answers
Best Answer
You are confusing two different issues: 1) Priority date retention; and 2) 245(i) eligibility.
In order to retain a priority date in this situation the I-140 must be approved. Since the I-140 was denied the priority date is lost, but it may be possible to file another I-140 depending on why the initial I-140 was denied. An approved labor certification does not lose its validity so long as the initial I-140 was filed within 180 days of approval (hence it may be able to support a subsequent I-140 filing).
To retain 245(i) eligibility, you must establish that the labor certification application was filed prior to April 30, 2001 and was "approvable when filed." Since the PERM application was approved that standard (absent fraud) would be met. However, under these facts, unless the PERM application was used to convert and old RIR or traditional labor certification, 245(i) would not come into play since the PERM program did not take effect until 2005 and you could not have a priority date prior to 2005.
I suggest you consult with an experienced immigration attorney who can review the specific facts of your case and advise you how best to proceed.
In order to retain a priority date in this situation the I-140 must be approved. Since the I-140 was denied the priority date is lost, but it may be possible to file another I-140 depending on why the initial I-140 was denied. An approved labor certification does not lose its validity so long as the initial I-140 was filed within 180 days of approval (hence it may be able to support a subsequent I-140 filing).
To retain 245(i) eligibility, you must establish that the labor certification application was filed prior to April 30, 2001 and was "approvable when filed." Since the PERM application was approved that standard (absent fraud) would be met. However, under these facts, unless the PERM application was used to convert and old RIR or traditional labor certification, 245(i) would not come into play since the PERM program did not take effect until 2005 and you could not have a priority date prior to 2005.
I suggest you consult with an experienced immigration attorney who can review the specific facts of your case and advise you how best to proceed.
No. It cannot for PERM or immigrant visa purposes.
However, if you are "grandfathered" under an old application for labor certification that was filed on or before April 30, 2001, and assuming it was "approvable when filed", then you'll be able to ultimately adjust status in the US, either thru marriage or a future approved PERM.
However, if you are "grandfathered" under an old application for labor certification that was filed on or before April 30, 2001, and assuming it was "approvable when filed", then you'll be able to ultimately adjust status in the US, either thru marriage or a future approved PERM.
It may be possible to keep eligibility for the 245(i) , but not the priority date