Chapter 8 - Documentation and Evidence

A. Filing

To seek an employment-based immigrant classification on behalf of a beneficiary, the petitioner must properly file an Immigrant Petition for Alien Workers (Form I-140) with the appropriate fee with the appropriate USCIS location.^[1]

1. Priority Dates

The priority date is used in conjunction with the U.S. Department of State’s (DOS) Visa Bulletin to determine when a visa is available and the beneficiary can apply for adjustment of status or for an immigrant visa abroad. If an immigrant visa is available for the petition’s priority date, and the beneficiary is otherwise eligible for adjustment of status, the beneficiary may file an Application to Register Permanent Residence or Adjust Status (Form I-485) concurrently with the petition.^[2]

Schedule A Permanent Labor Certifications and Petitions Not Supported by a Permanent Labor Certification

The priority date for a petition supported by a Schedule A designation, or for a petition approved for a classification that does not require a permanent labor certification, is the date the petition is filed with USCIS.^[3]

Individual Permanent Labor Certifications Filed with the U.S. Department of Labor

The priority date for a petition supported by an Application for Permanent Employment Certification (ETA Form 9089) (also referred to as the permanent labor certification application) filed with the U.S. Department of Labor (DOL) on or after March 28, 2005 is the earliest date the application for permanent labor certification is filed with DOL.^[4] In some cases, the date of filing in the certification section of the ETA Form 9089 may be blank. In such instances, USCIS may request a corroborative statement or other evidence from DOL that clarifies what the correct priority date should be.

Where the beneficiary’s priority date is established by the filing of the permanent labor certification, once the beneficiary’s petition has been approved, the beneficiary retains his or her priority date as established by the filing of the permanent labor certification for any future petitions, unless:

• USCIS revokes the approval of the previously approved petition because of fraud or willful misrepresentation;
• DOL revokes the approval of the permanent labor certification; or
• USCIS determines that the petition approval was based on a material error.^[5]

Retention of the earlier priority date includes cases where a change of petitioner has occurred; however, the new petitioner must obtain a new permanent labor certification if the classification requested requires a permanent labor certification.^[6]

2. Effect of Denial of Petition on Priority Date

If a Schedule A petition or a petition that does not require permanent labor certification is denied, no priority date is established. In addition, no priority date is established by an individual permanent labor certification if a petition based upon that certification was never filed and there is a change of petitioner (except in successor-in-interest cases).^[7]

3. Priority Date Based on Earlier Petition

If a beneficiary is the beneficiary of two (or more) approved petitions, the priority date of the earlier petition may be applied to all subsequently filed petitions.^[8]

For example, Company A files a permanent labor certification request on behalf of a beneficiary as a scientist with an advanced degree on January 10, 2020. DOL issues the certification on March 20, 2020. Company A later files, and USCIS approves, a relating immigrant visa petition under the employment-based 2nd preference (EB-2) category. On July 15, 2020, the beneficiary files a second petition on his or her own behalf as an extraordinary scientist under the employment-based 1st preference (EB-1) category, which USCIS approves. The beneficiary is entitled to use the January 10, 2020 priority date to apply for adjustment under either the EB-1 or the EB-2 classification.^[9]

B. Evidence

1. Job Offers

In most cases, the beneficiary of a petition must have a bona fide job offer from a petitioner in the United States. As evidence of the job offer, most petitioners who file EB-2 and employment-based 3rd preference (EB-3) petitions must first obtain an approved individual permanent labor certification from DOL.

In other cases, where the beneficiary is eligible for Schedule A blanket permanent labor certification, the petitioner submits unapproved permanent labor certification applications to USCIS with the petition. In relatively few cases, such as those involving beneficiaries seeking EB-1 classification,^[10] as well as those seeking EB-2 classification who also qualify for a national interest waiver,^[11] an individual permanent labor certification from DOL is not required.

2. Licensure

Neither the statute nor the regulations require that the beneficiary of a petition be able to engage in the occupation immediately. There are often licensing and other additional requirements that a person must meet before he or she can engage in the occupation. Unless needed to meet the requirements of a permanent labor certification, such considerations are not a factor in the adjudication of the petition.

Footnotes

[^ 1] See 8 CFR 103.2(a)(7)(ii)(D). See the Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Worker webpage.

[^ 2] See 8 CFR 245.1(g). See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section C, Concurrent Filings [7 USCIS-PM A.3(C)].

[^ 3] See 8 CFR 204.5(d).

[^ 4] See 8 CFR 204.5(d). The priority date for a petition supported by an Application for Alien Employment Certification (ETA Form 750) filed with DOL before March 28, 2005 is the earliest date the ETA Form 750 was accepted by any office in DOL’s employment service system. There may be instances where the petitioner indicates that DOL erred by assigning a new priority date on an ETA Form 9089 filed on or after March 28, 2005, even though the employer previously requested to withdraw the pending ETA Form 750 and refiled an ETA Form 9089 for the identical job opportunity and would have been eligible to use the previously filed ETA Form 750 filing date. For more information on labor certifications, see Chapter 6, Permanent Labor Certification [6 USCIS-PM E.6].

[^ 5] See 8 CFR 204.5(e).

[^ 6] For information about successor-in-interest determinations, see Chapter 3, Successor-in-Interest in Permanent Labor Certification Cases [6 USCIS-PM E.3].

[^ 7] For information on petition denials and portability, see Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment, Chapter 5, Job Portability after Adjustment Filing and Other AC21 Provisions [7 USCIS-PM E.5] and the Form I-485 Supplement J webpage.

[^ 8] See 8 CFR 204.5(e).

[^ 9] Petitions filed under the old third and sixth preferences were automatically converted to one of the new classifications when the provisions of the Immigration Act of 1990, Pub. L. 101-649 (PDF) (November 29, 1990), went into effect. If the application for labor certification was filed before October 1, 1991, the petition must have been filed by October 1, 1993, in order to preserve the date of the labor certification as the priority date. If the application for labor certification was filed before October 1, 1991, but not granted until after October 1, 1993, the petition must have been filed within 60 days after the date of certification to maintain the priority date. Otherwise, the date the petition was filed with USCIS (or before March 1, 2003, legacy Immigration and Naturalization Service) was the priority date.

[^ 10] See INA 203(b)(1)(A). For visa availability, see DOS’s Visa Bulletin.

[^ 11] See INA 203(b)(2)(B).