Regulation Overview: Under 8 CFR § 204.5(e), once your Form I-140 Immigrant Petition is approved, your early priority date is generally retained for future EB-1, EB-2, and EB-3 petitions for which you qualify.
Priority Date Retention (8 CFR § 204.5(e))
If you switch employers, the correct immigration path depends on the stage of your green-card process. A new employer generally needs a new PERM and I-140 when establishing a new employer-sponsored EB case. However, if your employment-based I-485 has been pending for at least 180 days and the new permanent job is in the same or similar occupational classification, INA §204(j) may allow you to port the approved I-140 basis without a new PERM or I-140. In either situation, an eligible priority date can generally be retained under 8 CFR §204.5(e).
| Scenario | Priority Date Retained? | Legal Citation |
|---|---|---|
| Employer Withdraws I-140 After 180 Days | ✔️ I-140 generally remains approved; priority date separately governed by §204.5(e) | 8 CFR §§ 205.1(a)(3)(iii)(C), 204.5(e) |
| Employer Withdraws I-140 Before 180 Days | Priority date may generally remain; I-140 approval is subject to automatic revocation rules | 8 CFR §§ 204.5(e), 205.1 |
| I-140 Revoked for Fraud or Misrepresentation | ❌ NO — Priority Date Lost | 8 CFR § 204.5(e)(2) |
Priority-Date Retention vs. Job Portability
- Priority-date retention: An approved EB-1, EB-2, or EB-3 I-140 generally gives the beneficiary its priority date for a later qualifying EB-1/2/3 petition, subject to the §204.5(e)(2) forfeiture grounds.
- I-140 validity after withdrawal: Under 8 CFR §205.1, an approved I-140 can remain approved after qualifying withdrawal or business termination occurring 180 days or more after approval or after the associated I-485 has been pending for 180 days or more, unless revoked on another ground.
- INA §204(j) job portability: When an employment-based I-485 has been pending for at least 180 days, an eligible beneficiary can generally move to a new permanent job in the same or similar occupational classification without a new PERM/I-140 solely for the adjustment basis.
180-Day Employer Withdrawal Protection Rule
The 180-day rule primarily protects the continued approval of certain approved employment-based I-140 petitions after petitioner withdrawal or business termination. It is distinct from the separate priority-date retention rule and from INA §204(j) job portability.
- If the I-140 remains approved, it may continue to support qualifying immigration benefits, including certain AC21 H-1B extension and H-4 EAD eligibility, provided all separate eligibility requirements are satisfied.
- If the beneficiary has an I-485 pending for at least 180 days, INA §204(j) may provide job portability to a same or similar occupational classification.
- An eligible priority date can generally be retained under 8 CFR §204.5(e), unless one of the regulation's priority-date forfeiture grounds applies.
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At-A-Glance
Retention Rule8 CFR § 204.5(e)
Withdrawal Lock180 Days
H-1B Extension3-Year Increments
Related Portability Guides
Related US Tools & Guides
Frequently Asked Questions (FAQ)
Not always. If an employment-based I-485 has been pending for at least 180 days and the new permanent job is in the same or similar occupational classification, INA §204(j) may permit job portability without a new PERM or I-140 for the adjustment basis. Outside that portability framework, a new employer-sponsored EB case generally requires its own labor certification where required and a new I-140.
No. Priority-date retention and continued I-140 approval are related but separate rules. An approved I-140 can generally retain its priority date unless one of the specific §204.5(e)(2) forfeiture grounds applies. The 180-day rules primarily concern when an approved I-140 remains approved despite petitioner withdrawal or business termination.
Generally yes. Under 8 CFR § 204.5(e), the beneficiary of an approved EB-1, EB-2, or EB-3 petition is entitled to retain the priority date for a subsequently filed EB-1, EB-2, or EB-3 petition for which the beneficiary qualifies. Retention can be lost if USCIS revokes the original approval for fraud or willful misrepresentation, the associated labor certification is revoked or invalidated, or USCIS determines that the approval was based on a material error.
Under 8 CFR § 205.1(a)(3)(iii)(C), an approved employment-based I-140 generally is not automatically revoked solely because the petitioner withdraws it when the withdrawal occurs 180 days or more after approval, or when the associated I-485 has been pending for 180 days or more. The I-140 can remain approved for certain immigration purposes unless it is revoked on another ground. Priority-date retention is governed separately by 8 CFR § 204.5(e).
Generally yes. Under 8 CFR § 204.5(e), the beneficiary of an approved EB-3 petition can generally retain that priority date for a subsequently filed EB-2 petition, or vice versa, provided the beneficiary independently qualifies for the new EB classification. The priority date cannot be transferred to a different beneficiary.
An approved I-140 can support an AC21 §104(c) H-1B extension when the beneficiary qualifies for the employment-based immigrant classification but cannot obtain permanent residence because the applicable per-country limitation prevents an immigrant visa from being immediately available. Qualifying extensions may be granted in increments of up to 3 years while the statutory eligibility continues.
Under 8 CFR § 204.5(e)(2), priority-date retention can be lost if USCIS revokes the petition approval because of fraud or willful misrepresentation of a material fact, revocation or invalidation of the associated permanent labor certification, or a determination that USCIS approval was based on a material error.
Under 8 CFR § 274a.12(c)(26), a qualifying H-4 dependent spouse may apply for employment authorization when the principal H-1B spouse is the beneficiary of an approved Form I-140 or has received a qualifying H-1B extension under AC21 §106(a) or (b), subject to the applicable H-4 EAD requirements.
Official USCIS References
• USCIS EB Portability Guidelines under AC21: uscis.gov/eb-portability
• eCFR 8 CFR § 204.5 Immigrant Petitions: ecfr.gov/8cfr204.5