Regulation Overview: Under 8 CFR § 204.5(e), once your Form I-140 Immigrant Petition is approved, your early priority date is permanently locked in for future EB-1, EB-2, and EB-3 petitions.
Priority Date Retention (8 CFR § 204.5(e))
If you switch employers after obtaining an approved Form I-140, your new employer must file a new PERM Labor Certification (ETA-9089) and a new Form I-140. However, you retain your original approved priority date for the new petition.
| Scenario | Priority Date Retained? | Legal Citation |
|---|---|---|
| Employer Withdraws I-140 After 180 Days | ✔️ YES — Priority Date Retained | 8 CFR 205.1(a)(3)(iii)(C) |
| Employer Withdraws I-140 Before 180 Days | ✔️ YES — Retained (unless fraud) | 8 CFR 204.5(e) |
| I-140 Revoked for Fraud or Misrepresentation | ❌ NO — Priority Date Lost | 8 CFR 204.5(e)(2) |
180-Day Employer Withdrawal Protection Rule
Under the DHS Final Rule (81 FR 82398), if your Form I-140 has been approved for at least 180 days before your employer withdraws it or closes their business:
- The approved Form I-140 remains valid for AC21 3-year H-1B extension eligibility beyond the 6-year limit under AC21 § 104(c).
- The approved Form I-140 remains valid for H-4 EAD work authorization under 8 CFR 274a.12(c)(26).
- Your priority date is permanently retained for any future employer's I-140 petition.
Frequently Asked Questions (FAQ)
Yes. Under 8 CFR Section 204.5(e), an approved Form I-140 priority date is permanently retained for future EB-1, EB-2, or EB-3 employment-based petitions filed by a new employer, provided the original I-140 was not revoked for fraud, willful misrepresentation, or invalidation of the underlying PERM.
Under 8 CFR Section 205.1(a)(3)(iii)(C) and the DHS Final Rule (81 FR 82398), if an approved Form I-140 has been active for 180 days or more before employer withdrawal, the I-140 remains valid for AC21 3-year H-1B extension eligibility, H-4 EAD eligibility, and priority date retention.
Yes. Under 8 CFR Section 204.5(e), a priority date established under an approved EB-3 I-140 petition can be ported and applied to a newly approved EB-2 I-140 petition (or vice versa) for the same alien beneficiary.
Yes. Under Section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21), an H-1B nonimmigrant who is the beneficiary of an approved Form I-140 and subject to per-country visa backlogs can extend H-1B status in 3-year increments beyond 6 years.
Under 8 CFR Section 204.5(e)(2), if USCIS revokes an I-140 approval due to fraud, willful misrepresentation, or gross error, the priority date is forfeited and cannot be ported to any future petition.
Under 8 CFR Section 274a.12(c)(26), H-4 dependent spouses of H-1B nonimmigrants who are principal beneficiaries of an approved Form I-140 are eligible to apply for an Employment Authorization Document (Form I-765).
Official USCIS References
• USCIS EB Portability Guidelines under AC21: uscis.gov/eb-portability
• eCFR 8 CFR § 204.5 Immigrant Petitions: ecfr.gov/8cfr204.5
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At-A-Glance
Retention Rule8 CFR § 204.5(e)
Withdrawal Lock180 Days
H-1B Extension3-Year Increments